4 La. 24 | La. | 1832
delivered the opinion of the court.
The petitioner states that the corporation of the city of New-Orleans, by an ordinance of their council, established an exclusive right to sell oysters within the city in such person as might become the purchaser of the privilege granted by the ordinance. That the right so conferred was adjudicated to him. That he has paid the sum of six thousand dollars therefor, and that various other persons, during the time his px-ivilege lasted, sold oysters in the city, without any effectual steps being taken by the officers of their corporation to prevent them. He alléges damages to have been sustained by him to the amount of eight thousand dollars; and also prays that the six thousand dollars, paid in cash and notes, maybe returned to him with interest.
The defendants, by their answer, denied the right of the plaintiff to sue them; and put him on the strict proof of his allegations.
The cause has been twice tried in the inferior court. On the first trial the jury found for the plaintiff and assessed his damages at three thousand dollars. A new trial being granted, and the cause again submitted to another jury, they found a verdict against the defendants in the sum of four thousand five hundred dollars. The court gave judgement accordingly, and the defendants appealed.
There was a suit between these parties, which will be found reported in the first volume of the Louisiana Rep. p. 126. The corporation succeeded in that case, the court being of opinion, that the privilege sold was not exclusive of places, other than those designated in the act of adjudication.
But subsequent to the contract which give rise to that action, and previous to the sale to the plaintiff which has caused this suit, the City Council passed an ordinance by which they prohibited the sale of oysters, except in certain places therein designated. The right of selling in these places the plaintiff contends he has acquired.
The act of adjudication produced by him supports thfs allegation, but it is urged on the part of the defendants that it does not mention the privilege shall be exclusive, and that consequently no such right was conferred on him.
It is true the act of adjudication does not state the privi- . ¶ n _ , A lege shall be exclusive, but the sale is expressly made in reference to ar|d conformity with the ordinance already noticed; and consequently imposed all the obligations, and conferred all the rights which that ordinance created, The evidence very clearly proves that the privilege thus so^ plaintiff was completely illusory. The sales by other persons were so numerous as to destroy the monopoly promised to him. Two juries have decided the question of diligence on the part of the corporation. The plaintiff purchased what through the fault of the defendants he has not g°t, and for which he is consequently not bound to pay. The evidence does not authorize us to interfere with the damages assessed by the jury who last tried the cause.
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed with costs.