Southern Mutual Ins. v. Pike, 32 La. Ann. 488

Southern Mutual Ins. v. Pike

32 La. Ann. 488 | La. | 1880

Lead Opinion

The opinion of the court was delivered by *490judgment against the defendant for one tenth (his virile portion) of whatever may be shewn to be due the plaintiff in cash, and for the delivery of its books, notes, etc. The pleadings and facts are fully set forth in our opinion, rendered when the case was last before us. The plea of prescription was then overruled, and the cause was remanded with the, order that within sixty days, from notice of the judgment-the ■defendant shall render an account of the administration of his father as president and treasurer of the plaintiff company, from February 1, 1862, and in default of compliance that the plaintiff be allowed to prose- ■ cute its suit to final judgment.

Manning, C. J.

This action is for an account, with a prayer for

*490The defendant obeyed the order by transcribing from the books the entries made therein from the date mentioned above to December. 6, 'Í864, “when his father ceased performing any functions as president or • treasurer of the company,” declaring that he has no knowledge of the ■ company’s affairs, and in rendering the account has been merely a ■ •copyist. He then pleads the prescription of ten.-years to “the entire claim, and to each and every item thereof, and to every item of the account.” This plea was sustained.

It is objected to this plea that our decree on the case, as it was before us then, is a bar thereto, and forms the thing adjudged quoad this plea. This is a misconception.

The plea of prescription first made was to the action for an account. Its substance and meaning was that, by inaction during ten years, the plaintiff had lost the power, or right, or faculty of calling on the defendant for an account of any kind. ¥e overruled the plea, thereby adjudging that the power and right to demand an account still existed, ■and in furtherance of its exercise ordered that one be rendered. The order has been obeyed. Now the plea of prescription is made to the Indebtedness evidenced by the account — to each item thereof that was put on the books ten years before the institution of this suit. It may well be that one shall be compellable to furnish or render an account of past transactions with another, and yet sufficient time may have elapsed to give him immunity from liability because of them.

This company was located at Baton Rouge. The last meeting of its ■directors was held there February 1,1862. The statement made then by the elder Pike as its president and treasurer is the basis of this suit. He left that place permanently in 1863 or early in 1864, and was engaged in the business of banking in this city continuously from that time until his death in January 1876. During his life no suit was instituted against him. . The latest entry in the books was in 1864. This suit was'instituted in 1877.

The prescription pleaded by the defendant, as one of the heirs of •his father, cannot be successfully opposed to the demand for any specific *491objects snob as the books, papers, seal, etc., and it is conceded that it does not. But the cash or money in hand in 1864, and the liability for non-collection of the notes and premiums on policies, is on a different footing. By the conversion of the former, and by the failure to collect the latter, a debt was created and the prescription liberandi causa is ■applicable thereto.

It cannot be seriously contended that Pike received the money as a ■special deposit. It was not expected that he should return it in kind, or distribute the identical money among those who might be entitled to it. From the moment when the business of the company stopped — when he ■ceased to conduct it in any of the capacities he had assumed, the liability for the money became a personal obligation which was enforceable against him. This is equally true of the notes. If it was his duty to collect them, and he failed to perform it, whereby they were lost to the ■company, his liability attached, and his creditors must enforce it in time at their peril.

The difficulty in the case, and the difference between the -counsel, lies not so much in the principles of law applicable to the case, as in the effect which certain facts have on the application of those principles. Thus it is, for the plaintiff contended that the elder Pike was actually president and treasurer of the company up to the day of his death— that the company was in existence, and he was the continuing manda-tary of the stockholders, and hence that prescription could not run while he held this relation to them. The defendant on the other hand points to the indisputable fact that Pike never undertook or transacted any business in insurance after February 1862 — that shortly thereafter he removed to this place, closing the office of the company, and that the last entry in the books is in 1864. His attitude to the company and to the stockholders was not that of an acting officer of a living organization. Even if his declarations were admissible in evidence, they did not imply, much less avow, that he was continuing the discharge of any official function. On the contrary their purport was that if he had incurred liability to any one for official acts in the past, he would discharge it. He treated the company as defunct, and so did all those who were interested in it.

We hold that the elder Pike’s liability attached in 1864 — that his son and heir cannot prescribe the demand for specific property, but he can oppose the prescription liberandi causa to the claim for money and to that of indebtedness for failure to collect the notes and the premiums on policies, which it is alleged he should have collected. He lived twelve years after the business of the company had ceased. No judicial demand was made during that time for the recovery of the debt created *492by bis alleged laches, and his heir is protected from that demand by the lapse of time.

Judgment affirmed.

Concurrence Opinion

White, J.,

concurs in the decree.

Dissenting Opinion

Dissenting- Opinion.

DeBlanc, J.

William S. Pike was, until his death, the President and Treasurer of the Southern Mutual Insurance Company. From his appointment in those capacities, whatever he received — money in payment of notes, or notes as evidences of loans — he held for, as the custodian of the company, and on deposit. He never evinced an intention of changing the character of his possession, never denied the rights of the stockholders ; but — on the contrary — left them under the impression that he would account.

It was only in 1874, that a remark made by him, should have warned those who heard it, that he had become an ordinary debtor of funds which he had ceased to hold as treasurer, and that remark was “ that he could and would settle with every one connected with the company, but that he could not do it at that time, for the reason that he could not then withdraw so much money from his business.” From that date — not before — prescription, if not otherwise suspended or interrupted — commenced to run in his favor.

For this reason, I respectfully dissent from the opinion and decree of the court.

Rehearing

On Application eon Reheaeing.

Manning, C. J.

The counsel for the plaintiff complain that by affirming the judgment of the lower court we sustain the plea of prescription which was opposed to the demand for the notes and_ other specific property. Such was not our intention. We said explicitly that that plea could not be successfully opposed to the demand for any specific objects, and lest our decree may be misinterpreted we now specially reserve the right of the plaintiff company to demand, sue for, and obtain possession of all the specific property, or property in kind, belonging to it and in the possession of the defendant, and in that sense we adhere to our original judgment, and refuse the rehearing.