17 La. 442 | La. | 1841
delivered the opinion of the court.
[443] Gaiennié, one of the defendants appealed from a judgment in, solido against him and his former partner and co-defendant, Deneufbourg; this appeal has been disposed of at a former term of this court. See 15 La. Eep. 439. During the pendency of this appeal, an execution issued against Deneufbourg, who had not joined in it. He paid the amount of the debt and received from Hall a subrogation to all his rights under the judgment. Being thus subrogated, Deneufbourg took a fieri facias against Gaiennié for the whole sum. The latter enjoined the execution of this wilt on the ground that he was liable only for one half of the amount of the judgment which he avers that he offered to pay provided he obtained a full discharge of the claim. To the petition of Gaiennié suing out this injunction, Deneufbourg, as transferree of Hall’s rights and in his own name, answered that Gaiennió was liable for the whole amount of the judgment in question, because the draft on which it had been obtained, though apparently accepted by the firm of Gaiennié & Deneufbourg, was not really due by said firm; it being for a private transaction of said Gaiennié, which does not appear in the hooks of the partnership, and that it ought to have been paid by said Gaiennió alone. The answer concludes with a prayer for the dissolution of the injunction and for damages. Upon these pleadings the parties went to trial below. Deneufbourg obtained a judgment in his favor, from which the plaintiff in injunction appealed.
The parties to this controversy having gone into the merits of the same without any objection as to the form and manner of proceeding in the premises, the only question presented is whether L. E. Gaiennió accepted Dougherty’s draft for the business of the firm or not, or in other words whether the firm' owed the draft, or whether it was duo by Gaiennié alone.
An attentive examination of the evidence has satisfied us as it did the judge of the court helow, that although made in the name of the firm by Gaiennié, the acceptance on Dougherty’s draft was for his individual benefit and account; and not for that of the firm. After paying the draft for which [444] the firm was responsible to a Iona fide holder, Deneufbourg, under his subrogation from Hall, has an undoubted right to recover back from
The judgment of the parish court is therefore affirmed, with costs.