Peters v. Gardere

8 La. 565 | La. | 1835

Bullard, J.,

delivered the opinion of the court.

The sole question presented for our solution in this case is, whether J. B. Leefe, one of the late firm of Baron, jun. & Co., was authorised to represent his late partner, the widow Baron, at a meeting of the creditors of N. A. Baron’s estate, and to vote for the appointment of a syndic, contrary to her wishes.

- The opposing creditors, who appealed from the judgment of the Probate Court, dismissing their opposition, contend, that he derived such authority from the act of dissolution of the firm, which contains the following clause: “The undersigned J. B. Leefe,' is to take charge of the settlement of the affairs of our late concern, and to exhibit a balance sheet, showing the situation of our business, so soon as may be practicable.”

It seems to us clear, that after the dissolution of the firm, neither party could bind, the other, without his authority. That authority must be derived, not from their former relations as partners, but from a new contract or agreement between them. Such contract is essentially that of mandate. The agreement must, therefore, be considered as a procuration, and Leefe was authorised to represent his late partner in the settlement of the affairs of the late concern. But, as agent representing the separate interests of his late partner, his authority might'be revoked by her at will, and he was bound by her instructions. Both the parties appeared at the meeting of the creditors, and both voted. Admitting that the clause above recited, in the act of dissolution, conferred on Leefe the authority of administration, yet, it is by no means so clear that he was thereby'authorised to represent his late partner in a judicial proceeding, having for its object the appointment of new representatives of both partners, relative to that particular debt. The Code requires that the power should ,be express and special, for many specified purposes, and “in general, when things to be done are not merely acts of administration, or such as facilitate such acts.” Article 2966. . To appoint a syndic, is to constitute a new mandatory in relation to the particular debt due by the insolvent. Although we are not prepared to say that a liquidator of a commercial firm is without authority to represent all the partners in the appointment of a syndic; yet, in this case, we concur in opinion with the court below, that Mrs. Baron had not deprived herself of the right to appear personally and vote, so far as her own interest was concerned.

The appointment of a syndic is to constitute a new mandatory, in relation to the particular debt due tty the insolvent, and a partner must have expressly delegated his authority to another, .to be deprived of the right of voting personally, so far as his own interest is concerned.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.