13 La. 121 | La. | 1839
delivered the opinion of the court.
This is an opposition of the heirs of a partner to the account of the partnership, filed by the executors of the other. The material facts of the case are as follows:
In 1806, Jean Reynaud and A. Peytavin formed, by notarial act, an universal partnership,' which was to continue for five years; their property consisted of houses, plantations, slaves, ships, credits, merchandize, &c. Jean Reynaud died
The property inventoried was afterwards sold on a credit of one, two and three years, to effect a partition, and the •instalments if not paid at maturity, were to bear interest at the rate of ten per cent, per annum, after they became due until paid. At that sale, A. Peytavin purchased to a large amount, and died shortly afterwards. The property was sold a second time by his executors, who, after receiving the proceeds, have filed a general account of their administration, including an account of the succession with the firm of Rey-naud & Peytavin. The executors, in that account, have charged the succession with the proceeds of the sale of the partnership property, reduced to cash, at the date of said sale, by a discount at the rate of eight per cent, per annum, upon the different instalments.
Songy Reynaud, one of the plaintiffs in opposition, had a private account against the succession, which had been previously accepted by the executors, and admitted without opposition by the attorney of absent heirs. The executors have placed him in the tableau for a sum less than the amount of that account.
The plaintiffs in.opposition being the children and heirs of Jean Reynaud and his wife, opposed the homologation of the
I. The whole amount of the property sold in 1833.
II. Interest at the rate of ten per cent, per annum, from the maturity of each instalment, till the final settlement of the succession, credit being given for the partnership debts paid by the testator.
III. The sum of twenty thousand dollars for the personal add household expenses of A. Peytavin, while he administered the affairs of the partnership.
IV. One hundred and forty thousand dollars, which they supposed ought to have been the value of the crops, made on the plantations of the firm, if they had been well managed.
V. Songy Reynaud further asks to be placed on the tableau for the whole amount of his account.
The Court of Probates after hearing the parties, overruled the opposition, and the heirs of Jean Reynaud appealed.
The first and most important question in this case is, whether A. Peytavin’s executors are bound to account to the plaintiffs in opposition, for the crops which might have been made on the partnership plantations, and for the personal eXpenses 0f the testator. One of the executors having been the factor of the testator since 1824, an account is produced by the firm to which he belongs, showing the proceeds of the C1'°PS made upon the partnership property from 1824 to 1833, and also the expenses incurred during that time : the , , . , . , , . , balance found in that account is charged to the succession, an(l plaintiffs in opposition do not object to it: they do not pretend to charge A. Peytavin with fraud, but only with \ ° . ' , „ , negligence. Whatever might have been the nature of the partnership, the fact, that after the death of their mother, the pla'ntiffsJ being all of age, renewed it, and suffered the property to remain, during five years, under the exclusive management and control of the testator, sufficiently proves, t-^at ^bey were satisfied with the degree of diligence which he used, and leaves them without the shadow of a right to claim damages at, this time, under an universal partnership.
The code of 1808, made some changes in those laws, but they do not affect the present case; and the claims of the plaintiffs for the profits which might have been made, and for the personal and household expenses of the testator cannot be sustained.
The manner of stating the account is unusual and singular, but the plaintiffs in opposition have failed to show that it was injurious to them. By the act of partnership between Madame Reynaud and the testator, the latter bound himself that at the dissolution of the firm, the share of each of the plaintiffs should, under no circumstances, be less than four thousand dollars, and that he would make up the deficiency. Their share, by the amount rendered is only one thousand and seventy-eight dollars, and seventy-six cents, and the balance up to the sum of $4000, is charged to the testator and credited to them. If the amount was amended as they desire, their share would be less than what they receive.
The demand of Songy Reynaud to be placed on the tableau for the whole amount of his private account, appears to us well founded. If the acknowledgment of the executors, and the admission of the attorney of absent heirs were made in error, that fact ought to have been alleged and shown on the trial of the opposition. The plaintiff may have had legal evidence of every item of his account, but he was not bound to produce it as long as the acknowledgments of the executors stood. The other parties have shown no error to their prejudice.