Rosa v. Mayor

1 La. 126 | La. | 1830

Martin, J.

delivered the opinion of the court. The petition states the plaintiff purchased from the defendants, for five thousand eight hundred dollars, the privilege of selling oysters in the city of New-Orleans, in certain places on the levee, theretofore designated for that purpose, and which were then un-r r . . derstood to be the only ones in the city where oysters were permitted to be sold. That the places thus designated were seventeen ; but since the plaintiff’s purchase, oysters have been sold in sundry other places, in violation of his privilege, and his complaints on that head to the proper officers have been disregarded, and the sale of oysters at these new places winked at and tolerated, whereby the privilege has become of no value ; and he has besides lost several large sums, expended in an attempt to render it available. He prayed that the defendants be decreed to repay him the sum of three thousand eight hundred sixty-six dollars and sixty-six cents he had paid to them, and surrender four notes he had given them to secure the balance of the price of the privilege, one thousand nine hundred thirty-three dollars and thirty-three cents.

The general issue was pleaded. There was a verdict for the plaintiff, the four last notes to be returned, amounting to one thousand nine hundred thirty-three dollars and thirty-three cents.

The privilege granted by the city council, to sell oysters at de-signaled places on the levee,does not prohibit them being sold at other places within the city.

The district court gave judgment in favor of the plaintiff for five thousand eight hundred dollars, reserving the defendant’s right reduce it for one thousand nine hundred thirty-three dollars and thirty three cents, by surrendering the plaintiff’s notes to that amount.

The defendants prayed a new trial, on the ground the judgment being contrary to law, the evidence and verdict; and, on its being refused, appealed.

We have considered the case on the merits; the counsel of neither of the parties having urged the technical question arising on the manner in which the judgment was entered.

It has appeared to us that the plaintiff purchased nothing but the exclusive privilege of . selling oysters in the different places desig- ~ nated for that purpose on the levee. Nothing was said as to the sale of oysters elsewhere; an¿ we cannot think he has any right to com- * a plain, when he was allowed the full enjoyment of the privileges he purchased,

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for the defendants, with costs in both courts.