1 La. App. 94 | La. Ct. App. | 1924
Lead Opinion
Plaintiff, as the holder and owner of a certain promissory note executed by the Reclamation Oil Producing Assn, of Louisiana, by its President, J. E. Camatte, brought this action against the Reclamation Oil Producing Assn., J. E. Camatte, W. N. Collins, F. Reynaud, D. W. Breazeale, and G. R. Murrell, for an alleged balance on said note of $820.08, with interest and attorney’s fees, alleging that the Reclamation Oil Producing Assn, is a commercial partnership, composed of the above mentioned persons, and that, as members of such, they are liable in solido on the said note. The trial judge found said Association to be a commercial partnership composed of said named individuals, and • rendered judgment against each and all of the defendants in solido for the full amount prayed for by plaintiff.
The defense is that J. E. Camatte, the President of the Reclamation Oil Producing Assn., had no authority to sign and execute said note for the said Association, and that defendants believed it was executed for Camatte’s own debt. Defendants further claim that they were and are only trustees of said Association, and that they are not bound for said indebtedness as individuals. They show further, in the alternative, that if the court should hold them partners, then they are only ordinary partners, and not commercial partners, and in any event liable only each for his virile portion.
Defendants, except Camatte, who permitted judgment to go against him by de
OPINION.
Since the case of American National Bank of Shreveport vs. Reclamation Oil Producing Assn, of Louisiana et al., No. 25,791 on the docket of the Supreme Court, the decision of which is reported in the Southern Reporter, Yol. 101, at pages 10 et seq., was against the same defendants as here, and since that action was the same sort of action as this, and since the issues involved herein are identical with those in the above styled and numbered cause, we think all parties here are concluded by the decision in said cause No. 25,791..
In that case, the Supreme Court held that the Reclamation Oil Producing Assn, was and is an ordinary partnership composed of the other defendants in this case, and that, as such, the said Association was liable for the full amount of the note in that 'case, and the other defendants were liable jointly as ordinary partners. We shall, therefore, hold the same in the case at bar.
There would appear at first blush to be a good deal of merit in the motion to remand; but in the case above cited, the .same request was made of the Supreme Court, or the same contention was made there as here, and the Supreme Court said that those were matters of defense which should have been raised in defense in the lower court, and evidence in support thereof introduced by defendants. On the application for a rehearing in the above cited case, the Supreme Court, in overruling, said contention of defendants and denying a rehearing, said; ,
“As to the other defendants, it is claimed that they are only a few out of many members of the defendant co-partnership, each of whom is liable only for his virile .share; but that was a matter of defense, as to which they should have made such proof in the court below as would have enabled this court to fix the virile share of each with some degree of certainty, and for which the evidence herein does not suffice.”
Apparently, the only difference in the situation in the cited case and that in this, is that the said question seems to have probably been raised for the first time in the cited case in defendant’s application for a rehearing, whereas in the case at bar, the question was raised in a motion to remand, before argument. However, the Supreme Court in the cited case, said, and we think correctly, that the question should have been raised in the lower court by way of defense and evidence there introduced in support of said defense.
For the reasons assigned, it is ordered, adjudged and decreed that the judgment herein appealed from be, and it is set aside, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, R. P. Miles, .and against the defendant, Reclamation Oil Producing Assn.,
Rehearing
ON APPLICATION POR REHEARING.
On appeal to this court the judgment of the lower court was reversed and judgment was rendered in favor of plaintiff, for $2,750.00, the amount of the note sued on, less certain credits. The wording of the judgment leaves the inference that the court intended to allow attorney’s fees on the full amount of the note, whereas such could not have been intended, the amounts sued for being only $820.00, the balance due on the note after allowing the credits due. .
We also note that said judgment awards interest at 5%, whereas the note .sued on bears interest at 8%. ,
We find in the record an agreement by counsel for both plaintiff and defendant that these errors be corrected.
It is therefore ordered, adjudged and decreed that our former judgment in this case be amended and corrected so as to allow attorney’s fees of 10% on the amount sued for, plus accrued interest at 8% instead of legal interest.