6 Rob. 127 | La. | 1843
In the month of October, in the year 1834, a number of individuals in the Parish of Natchitoches, agreed “to constitute themselves into a joint stock company, for the purpose of purchasing and running two steamboats, in the trade,” from that place to New Orleans; and they agreed to pay the sums annexed to their names, for the aforesaid purpose. It was further agreed, that the management of the funds and boats should be confided to a president and four directors, to be elected by the votes of the stockholders, each share to be entitled to one vote, and the money subscribed, to be paid in various instalments from the time of the purchase of the boats. The defendants became subscribers to this company or association, and affixed to their respective names the sums for which they desired to become interested. Vawter subscribed for $6000 ; Lecompte for $500 ; Prudhomme for $100 ; Buard for $200 ; and others for Various sums. An .election for president and directors was held, when Airey was chosen president, and Hopkins, Bossier, Cortes, and Vail, directors. These individuals signed a document, or power of attorney, in which they state, that an association had been formed by various merchants and planters, who had organized themselves under the style of the Natchitoches Steamboat Company, “for the purpose of convenience and facility in navigation.” They state that stock, to the amount of $24,000, has already been subscribed, to be applied to the purchase of one or two substan
This suit is brought to recover the balance of an account for $6860 96, the items of which consist of the bills or drafts mentioned in the agreement, and others drawn since; of charges for commissions, for acceptances, and advances ; of cash paid, of interest at the rate of ten per cent on the various sums, and of other charges, to a very large amount. The credit side of the account shows large payments, amounting to much more than the drafts given in payment for the steamboats Ouachita and Romeo, and the only one drawn by the President of the Company.
The defendants pleaded the general issue. They denied the authority of Vawter to draw the drafts, or to incur the expenses charged against them, also the right of the President and Directors to delegate any such authority to Vawter. They allege further, that they are not bound beyond the amount of their respective subscriptions ; and, finally, plead the prescription of one, three, and five years.
The inferior court, after hearing the parties, was of opinion that the plaintiffs had satisfactorily established their account, but held that the defendants were not responsible as commercial partners, but as joint obligors, or to use the language of the Judge, that “ they are only bound to the plaintiffs in the proportion for which they subscribed, and as the whole stock of $24,000 is to the debt of the plaintiffs, so is the responsibility of each subscriber for the sum annexed to his name and he gave a judgment accordingly, from which the plaintiffs have appealed.
In this court, the defendants Vawter and Cortes pray, that the appeal as to them may be dismissed, on the ground, that they have not been cited ; and the defendants Prudhomme, Lecompte, Buard and Vail, also move to dismiss it, on the ground, that the appellants have not brought into this court all the defendants against whom they obtained judgments.
As to the motion of "Vawter and Cortes, it cannot prevail. They were made appellees in the petition of appeal, which petition was filed with the Clerk, whose duty it was, under art. 581 of the Code of Practice, to deliver a copy thereof, with a citation to the Sheriff of the parish, to be served on the appellees. It is not shown that
The ground of dismissal urged by Prudhomme and others, involves the question in what way the partners are bound, whether, in solido, or as joint obligors. If the subscribers to the Natchitoches Steamboat Company are only bound for the sums respectively subscribed, they are joint obligors, or .partners, in commendam; if they are responsible as commercial partners, they are bound, in solido ; and any, or all of them, may be sued for the debts of the firm, and it is no more necessary to make them all parties to the appeal, than to the original suit, it being shown that the partnership is dissolved.
The Civil Code, art. 2796, says, that commercial partnerships are such as are formed, among other purposes, “ for carrying personal property for hire, in ships, or other vessels.” By reference to the agreement subscribed by the parties, this appears to have been the sole object of their association. In 17 La. 85, we said, that the owners of a steamboat, transporting passengers and carrying merchandize for hire, are commercial partners, and may be sued individually, or a portion of them, for a debt due by the boat, without joining all the parties in the action. 8 Mart. N. S. 390; 4 La. 50, 107. These authorities appear to us conclusive; but if more are necessary, they can be found in any elementary treatise on partnership, and in the decision of this court in 4 La. 140, where it was held, that if a party shares in the profits of a partnership, he is responsible for its debts, although his name be not in the firm. Gow on Partnership, p. 15, 16, ed. 1830. But it is staled by the District Judge, that as Vawter, when he applied to the plaintiffs to accept the drafts, and showed them his power of attorney, also exhibited to them the articles of association, the list of subscribers, and the sums subscribed by each, they knew how much each party put into the concern, and that
The court below was of opinion, that the authority of Vawter to draw the drafts annexed to the account was sufficiently shown, or subsequently ratified by the President and Directors of the Company; that the charges for interest were usual, and had been paid; and that the commissions were sanctioned by the agreement made in December, 1834; and finally, that the account was sufficiently established. We are of a different opinion. The power of attorney given to Vawter, only gave him authority to purchase one or more steamboats, and to negotiate for the payment for them. Under it, we think he had a right to draw the drafts mentioned in the agreement to pay for the Ouachita, and the two for $4,000 each, to secure the price of the Romeo. No authority is shown
The plaintiffs’ counsel contend, that the depositions of Harding, their clerk, with the testimony of Airey, Cockerille, and Ogden, sufficiently prove the account. We think not. Cockerille seems to know nothing about the correctness of the account. It is true that Harding swears to its correctness ; but we consider his testimony as entitled to no weight, as it appears that he was
The testimony of Airey relates to the agency of Vawter, which he proves only to have been a general one. He also made various admissions to Ogden, of a very vague and general character, in relation to the account, not sufficient, we think to sustain it. Ogden’s testimony consists entirely of the admissions made by Airey, the former President of the Company, which the latter admits to be true. But all these admissions were made after the dissolution of the Company by the destruction of one of their steamboats, and the sale of the other. Civil Code, art. 2847. His admissions are, therefore, not binding on the defendants. 6 La. 683; 8 La. 568; 4 La. 32; 5 Mart. N. S. 324.
As to the charges of interest at the rate of ten per cent per annum, they are not sanctioned by law, as there is no written agreement to pay interest at that rate ; nor are the plaintiffs entitled to charge two and a half per cent for cash advances, except on such as may have been made on the three drafts mentioned in the written agreement. The charges of two and a half per cent for accepting the drafts which Vawter was authorized to draw, are correct, and those for commissions as agents of the steamboats.
It further appears, that one of the drafts charged, is drawn by a person named Daly. It seems that he was a clerk of one of the steamboats ; but no authority to him to draw drafts or bills, which will bind the defendants, is shown.
From the credit side of the plaintiffs’ account, it appears that a larger amount has been paid them, than that of the items of their account which have been proved ; but as it may be in their power to show that the acts of Vawter, in drawing all the drafts were ratified, or that their proceeds enured to the benefit of the Company in which the defendants were partners, we think justice requires, that we should only give a judgment of nonsuit against the plaintiffs.
The judgment of the District Court is, therefore, annulled and