Segond v. Thomas

10 La. 295 | La. | 1836

Martin, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment of the District Court, disallowing the greater part of the balance of an account claimed by him. The part which was rejected consisted of a draft of three thousand three hundred dollars, with interest and commissions thereon, drawn on the plaintiff by Sewell Woolfolk, who is alleged to have been authorized to make it by the defendant.

Where the acceptor of a draft, notifies the principal or guarantor of the agent or drawer, of its 'acceptance, tenor and amount, by stating it at the foot ot an account rendered on a settlement, before the draft is due, to which he makes no objection, and which is after-, wards paid by the acceptor at maturity, he is bound to reimburse it, but without interest. Commission is a fair compensation for the use of the name and credit of the acceptor, but interest is not allowable on advances to take up an acceptance, where there is no agreement to pay any.

This is resisted .by the latter, on the ground that Woolfolk was without proper authority. It appears, by a letter of the defendant, written to the plaintiff on the 13th day of March, 1831, that Woolfolk was introduced by-the former to the latter as concerned with him in a planting establishment, going to New-Orleans for the purpose of making purchases therefor, and directed by the defendant to draw on the plaintiff for such purchases. The letter concludes with a request to the plaintiff to pay his drafts. This certainly establishes in Woolfolk an authority to draw, without the amount to be drawn for being either limited or specified.

The draft objected to was accepted by the plaintiff the 10th June, 1831, payable the 11th March, 1832. A few days after the acceptance, the plaintiff rendered an account to the defendant, leaving a small balance in favor of the latter. The plaintiff noted,- at the foot of the account, two drafts of Woolfolk on him, which he had accepted, but which were not yet payable, without carrying out their amount in the outer column.

One of these drafts is the one under consideration. The defendant received the sum which the account showed to be due to him at the time of this settlement. It does not appear that he made any objections, then, to the acceptance of the draft in question by the plaintiff, on his account, or at any time, until after payment, and the amount thereof was charged to him in a new account.

It is clear that this silence precludes any objection now to the reimbursement of the plaintiff. Knowledge was brought to him of his agent having made the draft, and of its being accepted by the plaintiff, about nine months before it became due and payable. He ought then to have disclosed, any objections he had to its being paid on his account.

The commission is but a fair compensation for the use of the plaintiff’s name and credit, but there is no law authorizing a charge for interest in a case like this, nor is there a tittle of evidence of an agreement to pay any.

The jury, in'our opinion, erred in rejecting the plaintiff’s •claim to the amount of this draft and his commission thereon. As this is rather an error of law than of fact, and the record enables us to correct it, we refrain from remanding the case, as we did in the case of Hanse and Hepp vs. New-Orleans Insurance Company, ante 1.

Where the sum found by the jury is erroneous, and the error is rather one of law than of fact, which the record enables the court to correct, the case will not be remanded, but final judgment rendered.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and proceeding to give such judgment, as in our opinion should have been rendered in the court below, it is therefore ordered, adjudged and decreed, that the plaintiff do recover from the defendant the sum of four thousand and sixteen dollars, with costs in both courts.