2 Rob. 92 | La. | 1842
The plaintiffs, holders of a number of the notes of the defendants, amounting to $3250, presented them for payment in specie at Little Rock, in the state of Arkansas, which being refused, they attached seventy-four bales of cotton in the hands of Frierson, Dale & Co., in New Orleans. The defendants answer that the property seized does not belong to them, but to the intervening party who claims it. That they have never been cited, nor are they in court by the seizure of any property of theirs ; and further, they plead a general denial.
John Preston of Arkansas intervened in the suit, and claimed the cotton as his property. To this petition the plaintiffs file a general denial only, and pray that his demand be rejected, and that the cotton be adjudged to be liable for their debt and costs.
The evidence shows that the cotton was purchased of different planters, in the neighborhood of Helena, where there is a branch of the Bank, by the officer of the branch; and that it was after-wards sold by the President, by order of the Directors, to the in-tervenor, who gave his note for the price, which appears to have been a full one, payable in sixty days. The cotton was delivered ed to Preston by the Cashier, who put the letter P on it as his mark ; and it was shipped by the purchaser, and a bill of lading taken in his own name.
There was a judgment in favor of the plaintiffs for the amount of their debt, and against the intervenor on his claim to the cotton, from which he alone has appealed.
The pleadings in this case present simply the question of title to the cotton. There is no allegation of fraud or simulation in the sale, although the counsel for the plaintiffs has in argument' endeavored to establish both. The evidence shows conclusively that there was a sale and delivery of the cotton to Preston, the inter-venor, and that it was shipped to the garnishees as his properly ; and though Preston does not appear to have yet paid the price, it is not the less a sale, since the payment of the price is not an essential requisite to that contract. The price is secured by a note, and nothing is shown to prevent its collection, at the pleasure of the holder. From the time that the cotton was delivered to him on the bank of the river, and the putting of the initial letter of his • name on the bales, it was at his risk; and had it been lost or destroyed, the loss would have been his, so far as the record presents the case. The fact of Preston being a stockholder in the Bank, and formerly its attorney, and of his not being in the habit of purchasing, may create a doubt on some minds as to the fairness of the transaction ; but that is not a sufficient ground to set aside a sale, as this court has often decided.
The counsel for the plaintiffs contends that though he may not be able to hold the cotton attached or its proceeds, yet that he has a right to the vendor’s privilege, which the Bank has on it in consequence of the price not having been paid by Preston. This position seems to us more specious than sound. By reference to the return of the sheriff, it will be seen that no such right was attached ;
The judgment of the Commercial Court is, therefore, annulled and reversed, so far as it relates to the intervention of John Preston ; and it is ordered that the intervention and claim of John Preston to the seventy-four bales of cotton in controversy, or the proceeds thereof, be sustained, and that the same be paid to him ox his assigns, by Frierson, Dale & Co., the holders thereof; the plaintiffs paying the costs of this appeal, and those of the intervention in the inferior court,
The sheriff’s return is in these words : “Attached in the hands of Frierson, Dale & Co., seventy bales of cotton, marked P.”