| La. | Sep 15, 1847
The judgment of the court was pronounced by
This case was remanded by the late Supreme Court on several bills of exception, and is reported in 3 Rob. 201" court="La." date_filed="1842-10-15" href="https://app.midpage.ai/document/reynolds-v-rowley-7207483?utm_source=webapp" opinion_id="7207483">3 Rob. 201. On tho first trial in the court below, the jury gave a verdict in favor of the plaintiffs ; the defendants.failed in the attempt to have it set aside, and appealed. On the second trial, there was a verdict in favor of the defendants in reconvention, for one cent; the plaintiffs did not move for a new trial, and appealed.
After a careful examination of the evidence, we have come to the conclusion that we cannot affirm the judgment. 1. The fact that in two successive trials each party has obtained a verdict, neutralises the effect which, under ordinary circumstances, is properly given to the decision of juries. 2. From the manner in which the case went to the jury, we .find it impossible to ascertain on what grounds the last verdict was rendered, and whether it was the result of the view the jury took of the law of the case, or of the nature and credit of the evidence adduced in support of the facts. 3. The fact specially-pleaded by the defendants of the payment of $20,000 on the account sued on, and their admission in the answer that the plaintiffs were factors of the Marengo plantation, has created on our minds the impression that there may be a balance due and unpaid on those accounts. 4. Improper evidence was suffered to go to the jury. We think justice requires that the case should be remanded; and in making that disposition of it, we will pass upon the matters contained in the numerous bills of exceptions found in the record, and lay down such rules for the trial of the case as will reduce it to little more than a question of fact, in the hope that such a course will facilitate the termination of this harrassing controversy.
I. The evidence of Mrs. Francis E. Sprague was properly admitted against the other defendants, she being a nominal party, and having no interest in the .event of the suit.
' II. The acknowledgment and declarations of Sprague, in relation to tbe
III. The document L. L. D. was properly rejected., so far ,as Mrs• Rowley and the heirs of James Kempe were concerned, for the reasons given in relation to document marked A.
IV. The declarations of Mrs. Sprague, given under oath as a witness for Mrs. Rowley, in the suit oí Jane Rowley against Charles N. Rowley, her husband, were properly rejected. Mrs. Sprague is a witness ,in the cause, and would no doubt have testified .tothe same facts if called upon ,to do so.. The defendants ought not to be debarred from the right of cross-examining her upon the facts sworn to by her on another occasion.
V. The court erred in ordering the juror, Henry Vidal, to be sworn, after'be had been peremptorily challenged by the .counsel of Mrs. Rowley. There had been but one peremptory challenge at the time, and Mrs. Rowley could not be deprived of the right which the law gives her, by the request of one of her co-defendants that the juror should be sworn in the case.
VI. The notes marked B. 1, B. 2, B. 3, were properly admitted in evidence. They are acknowledged in the answers of the defendants. The copy of the proces-verbal of the sale of the Marengo plantation by the judge of the Court of Probates, was also properly admitted. It is the evidence of a judicial sale, and does not require witnesses to make it authentic.
The testimony of Charles A. Lacoste, taken down in writing on a former ■trial, could not be rejected on the grounds urged against its admission. That ■witness resides out-of the State, and it would be oppressive and unjust to re-quire his testimony to-be taken anew at every trial. We will, -however, observe that his testimony is so loosely taken down, that we think it ought to be taken again, so as to place -his evidence before a jury as it really is. -He is .clearly a competent -witness; his position and former connection in business with the plaintiffs, going only to his credibility.
The court erred in permitting the report of the experts,-to whom -the account .sued on had been referred, to go to the jury. That report had not been homologated ; both parties appear to have abandoned it, and to have gone to trial as if the reference had not been made. -Under those circumstances, the report of the experts had no more value than a statement of the same facts made by any other person. It was not evidence, and should have been rejected.
VII. The letters and account of Remson 8f Co. were admissible -to prove their own existence, and for the purpose of facilitating and completing the proof that the advances charged to Mrs. Rowley had been -made; but unless the fact of those advances and the payment of them by the plaintiffs were proved aliunde, those documents proved nothing against her, and the jury should have been so charged. The aeeounts-current. Nos. 1, 2, 3 and 4, were properly admitted ; they were apart of the pleadings in the case, and an indispensable requisite of the action. Their going to the jury did not dispense the plaintiffs from the necessity of proving them; and we have not been informed how they could have been proved, unless they were first produced.
The opinion we have formed on the law of the case, renders the examination of the remaining bills of exception unnecessary. The law by which it-is to be decided, we consider tobe as follows:
1st. The alleged incapacity in Mrs. Rowley to contract, and .give a power of attorney, during the years 1832, 1833, and 1834, based upon the alleged nullity of the judgment of separation from bed and board between her and Francis A, Girault, and her subsequent marriage -with Charles N. Rowley, is no defence against any sum which may be found due from her, under the allegations of die petition. If she did administer in her own right and name, and designate Sprague to her factors as her agent in the administration of the Marengo plantation, she is bound in good conscience and on general principles .for the consequences of his administration. But besides this her share in that estate was paraphernal, and, under article 2361 of the Louisiana Code, the wife has the right to administer personally her paraphernal property, without the assistance of her husband. What she could do by herself, she could authorise another to do. She had from the beginning, in relation to the administration of that property, all the powers of a feme sole.
'i he power of attorney to Sprague was not revoked by her subsequent marriage with Charles N. Rowley. According to Judge Story, tire reason that, as a general rule, marriage revokes powers .of attorney previously given by the wife is, that the power of constituting an agent is founded on the right of the principal to do the business himself, and, when that right ceases, .the right of constituting an agent must cease also. Story on Agency, 501. In this case the law gave Mrs. Rowley the right to administer after marriage without .the .assistance of her husband, and therefore the rule does not apply.
2d. The contracting of debts by Sprague in the name of the Marengo plantation brings those contracts within the power of attorney, provided the advances were reasonable in amount, and made by the plaintiffs under the honest belief that they would be applied according to the true intent end meaning of the •mandate. It is necessary that those, advances should have been made in good faith for the Marengo plantation, and not on the account of Sprague, or any one else ; and if they were so made, the plaintiffs were not responsible for the subsequent appropriation of them by Sprague.
The contracts were not made in Sprague’s own name, and he was not upon their face responsible for them. They were made in the name of the Marengo plantation; and we are of opinion that that name sufficiently designated the persons, or partnership, on whose account the debts were contracted. It may be true that Sprague had no right, under the power of attorney, to sign notes and draw bills as he did ; but, if he received from the plaintiffs the proceeds of those bills as loans made to the Marengo plantation, .the owners of that plantation are responsible for the amount so received.
If the ground taken by the defendants’ counsel .that, under our laws, special powers to do certain acts, to borrow money, for instance, must in all cases mention the specific acts tobe done, was based .upon recent legislation, the construction contended for by them would receive the serious .consideration of the court. It appears to us that article 2966 is not to be construed as an absolute and independent provision, but as framed in illustration of the article immediately preceding it, 2965, which says, “if it be necessary to alienate, or give a
3d. The admission of any ¡fact made by Sprague during the continuance of ¡his agency, haying .a direct relation,to the business entrusted to him, is binding .on the defendants, particularly if it be a thing done by Sprague himself, or -.within,bis o.wn knowledge; ,but after the expiratiqncf his agency, bis admissions.cannot prejudice or bind the,defendants.
4th. Ip.conclusion we wi]i.observe that, this,action ,is -brought on .an open .account, and that the proscriptions o.f three.and five years are not .applicable to it.
For,the ,reasons assigned,¡it is ordered, that the judgment be reversed and -the .cause remanded for further proceedings, with instructions to the district judge to.conform to the rules and opinions expressed in the reasons of this.de.cree.; .the.dofondants.and appellees paying the costs of .this.appeal.