48 La. Ann. 1321 | La. | 1896
Lead Opinion
On Motion to Dismiss Appeal.
The opinion of the court was delivered by
Defendant and appellee moves to dismiss the plaintiff’s suspensive appeal, because the surety on the appeal bond, the American Surety Company, of New York, a foreign corporation, “ is
And said appellee moves to dismiss plaintiff’s devolutive appeal, for the reason that the suspensive and devolutive appeals herein were perfected on the same date by two separate appeal bonds, and that appellants are without warrant in law to bring up in one transcript two appeals taken in the alternative.
The record shows that on the 20th of June, 1895, plaintiff’s counsel, in open court, obtained from the judge an order of “ suspensive and devolutive appeal ” upon the plaintiff “ giving bond as fixed by law for a suspensive appeal, and in the sum of one hundred dollars for the devolutive appeal.”
Thereafter, the plaintiff furnished to the Clerk of the Court two separate bonds of appeal — one devolutive and the other suspensive— bearing same date of execution and approval, in exact conformity "with the order of appeal.
We entertain no doubt of the validity of the two appeals, though granted in one order by the court — the judge having granted both the suspensive and devolutive appeals. It is of no consequence that the appellant executed, contemporaneously, two appeal bonds. It was the better practice to thus preserve the identity and duality of the appeal. The order of court is the foundation of the appeal. Only •one transcript is necessary, there being but one decree. Succession of Touzanne, 36 An. 420.
On the second ground of the motion counsel’s argument is, that, as matter of law, a corporation can not become surety on an appeal bond, not possessing the essential faculty of a judicial surety in the sense of the Code; and that the statute declaring a corporation to be •a competent surety is unconstitutional and void, and that plaintiff’s appeal must be dismissed for the want of a competent surety.
A judicial surety must possess the qualifications required by R. C. C. 3041 — that is to say, he must be “ a person able to contract.” R. C. C. 3064.
The Code also declares'“ that a corporation is an intellectual body created by law,” etc. R. C. C. 427.
. “ Corporations are intellectual beings different and distinct from nil the persons who compose them.” R. C. C. 435.
It does not readily appear that the Code, by the use of the term persons, has necessarily excluded corporations from the privilege of making a binding contract of suretyship, if the same be permitted by the terms of their charters.
With regard to the domicile of the judicial surety, fhe Oode says:
“When surety is tendered of persons residing out of the parish, the judge alone shall pass on the sufficiency thereof,” etc. R. C. C. 3042.
And it further declares that “all actions against the sureties ■aforesaid may be instituted in the court having original jurisdiction of the subject matter; and the parties thereto, when legally cited, sh?ll be subject to the jurisdiction of such court.” Id.
There is, therefore, no serious question as to the domicile of the .surety, and none as to the solvency.
(a) The charge of uneonstitutionality of the law is, that—
1. The object of the act being to amend the articles of the Code -relative to the qualifications of sureties on judicial bonds, it contravenes Art. 29 of the Constitution, which declares that “every law •* * * shall embrace but one object, and that be expressed in its .title.”
The title of the statute is as follows, viz.:
“An act to authorize certain corporations to become surety upon bonds required to be furnished by law,” etc.
This title indicates that the statute following will make provision •for certain corporations to become judicial sureties, and such provisions may operate as an amendment of the Civil Oode in that respect; but we think the enactment of a statute, such as the title imports, comes clearly within the competency of the Legislature.
On the subject “ of repeal of laws” the Code says:
“Laws may be repealed either entirely or partially by other laws” (R. C. C. 2).
“ The repeal is either express or implied. It is express when it -is literally declared by a subsequent law; it is implied when the law .contains provisions contrary to or irreconcilable with those of the former law” (R. C. C. 23).
In our opinion the title of the act clearly states the object of the law.
(6) The second charge of unconstitutionality is that the act contravenes Art. 46 of the Constitution, in that it grants the privilege of becoming surety to certain kinds of corporations exclusively, and excludes all others therefrom; the argument of defendant’s counsel being “ that this is special legislation purporting to give exclusive privileges to a particular group of corporations, which are prohibited to all corporations not within that particular group.”
Counsel, then, in the elaboration of the foregoing objection, submits :
“Moreover, Act 41 of 1894 especially grants to foreign guarantee corporations having no property within this State the capacity of suretyship, which is enjoyed neither by other corporations in the State nor by private citizens; even a home guarantee corporation is not admitted to suretyship unless it has on deposit with the State Auditor of Public Accounts assets worth one hundred thousand dollars, nor can private citizens be admitted to suretyship on legal bonds unless they have property within the State. Indeed, this statute attempts as rank a preference as did that of the California Legislature, referred to by Judge Cooley, which, under pretence of enacting a Sunday law, forbade bakers to bake bread on Sunday.” Cooley’s Const. Lim., 154 N.; Ex parte Westerfield, 55 Cal. 550; 36 Am. Rep. 47.
Article 46 of the Constitution declares that the General Assembly “ shall not pass any local or special law” upon the following subjects; and one among the number is that of “granting to any corporation, association or individual, any special or exclusive right, privilege or immunity.”
But the act in question is not a local or special law.
It declares “ that hereafter any corporation duly incorporated under the laws of this or any other State of the United States for the purpose of transacting the business of guarateeing the fidelity of persons holding places of public or private trust; guaranteeing the performance of contracts other than in insurance policies and executing and guaranteeing bonds, or undertakings required, or permitted in actions or proceedings by law allowed,” etc.
This objection is not well grounded.
The next objection is that the statute contravenes the two hundred and thirty-fifth article of the Constitution, which provides that “the exercise of the police power of the State shall never be abridged, nor so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals or the general well being of the State.”
The argument of counsel on this proposition is unique, but, in our conception, it is unsound.
We quote the following from their brief (pp. 9 and 10), to-wit:
“ The police power of the State is an attribute of the widest reach, and all attempts to circumscribe it by definitions and formuUe have failed. It embraces not only governmental acts which bear upon the lives, liberties, health and good order of the governed, but also all such as affect the value, security, availability and use of the property of individuals. An exercise of the power in this latter sense; or its legislative construction by enactment, which has the effect of permitting corporations to conduct their business in such a manner as to infringe the equal rights of individuals to the possession, security and utility of their property, is obnoxious to the article of the Constitution.
“ A definitive judgment is undoubtedly property to him in whose favor it is given, as well as the availability, security and control of the judgment. It is the equal right of individuals to have this property protected and secured by the suretyship of a man or woman residing within the jurisdiction of the court granting the judgment and having sufficient property within the State, whenever the control and use and enforcement of the judgment are arrested by suspensive appeal (R. C. C., Art. 3042; C. P., Art. 575).
“The Act of 1894 permits guarantee corporations so to conduct their business as to infringe this equal right of individuals, since it admits them to legal suretyship, though they be neither men nor women, and they be neither domiciled in the State nor own property therein; and the individual whose judgment is arrested by such suretyship suffers an infringement of the equal rights of all individuals, in such circumstances, to the benefit of security domestic both as to person and property.”
We understand that the defendant and appellee, as well as every other litigant, has the right to require that a surety shall possess property situated within the State to satisfy the exigencies of the case; but the law does not require that he shall reside in any specified locality. For the moment the person who, or corporation which, becomes surety signs the judicial obligation, he submits himself to the jurisdiction of that court pro hao vice. R. C. C. 3042.
Hence there is no foundation for this charge of unconstitutionality of the law, in this respect.
We have examined the grounds of the motion to dismiss with care, and have reached the conclusion that they are not well taken.
Therefore the motion to dismiss appeal is overruled.
Opinion on the Merits
On the Merits.
On the 7th of November, 1893, the plaintiff commenced proceedings by attachment, which was subsequently dissolved by the Judge of the District Court, because of certain supposed irregularities in the proceedings; but on appeal to this court that judgment was set aside, the attachment reinstated and the cause remanded for further-proceedings.
Since the cause was remanded it was tried by a jury, who ren - dered a verdict in favor of the defendant for seven thousand five hundred and eighty-four dollars as actual damages sustained in the wrongful issuance of the writ, and they at the same time gave judgment in favor of the plaintiff for the sum of two thousand seven hundred and fifty-six dollars and twenty-three cents, thus giving the defendant judgment for a'n approximate balance of four thousand' eight hundred and twenty-eight dollars and eleven cents over the-amount given to the plaintiff.
From that judgment the plaintiff has appealed.
For a succinct statement of the case see case of same title, 47 An. 710.
Suit is brought on an open account for about the sum of two-thousand nine hundred dollars, for cash advanced to the defendant*
The attachment proceeds upon the theory that the defendant had mortgaged, assigned or disposed of, or was about to mortgage, assign or dispose of his property, or some part thereof, with intent to defraud his creditors. The defendant having, in his motion to dissolve the attachment on technical grounds, reserved the right to have the attachment dissolved, in the alternative, because the affidavit was untrue, availed himself of that reservation when the cause was remanded, and, in his answer, set up the untruthfulness of the affidavit and claimed in a reconventional demand nine thousand three hundred ond eighty-four dollars and forty cents actual damages, in addition to about four hundred dollars in the way of credits for partial payments made on account.
The two questions for consideration are: (1) Was the affidavit ' untrue when made? (2) If untrue in point of fact, to what amount has defendant been damaged?
In determining the truthfulness of plaintiff’s affidavit, the main, question is whether the defendant was guilty of fraud, either intended or accomplished, in the acts complained of as justifying a-resort to the writ.
The record shows that on the 25th of April, 1893, the defendant-executed his obligation in favor of the plaintiff, for and in consideration of an advance of two thousand five hundred dollars to be made-by it, on his drafts aggregating five hundred dollars per month,, binding himself to ship to the company “ during the season of 1893-94, four hundred tons, and as much more of good sound cotton seed,, as he ceuld buy or control, this seed to be weighed at Lake Providence by clerk of steamboat, and credited to (him) at the market-price,” etc.
Defendant’s contract further stipulates that “as security for the-payment of this advance and the delivery ” of cotton, he was to execute an act of mortgage on his ginhouse and contents, in the sum of two thousand five hundred dollars; and, in accordance with that contract, he did execute his note and mortgage for the sum of two-thousand five hundred dollars, “ for money advanced and to be advanced duiing the year 1893.”
Plaintiff’s account shows that an account was opened with the de
It thus appears that the plaintiff fulfilled to the letter the terms of its contract, and even honored defendant’s drafts beyond the amount agreed upon, notwithstanding there occurred in the summer of 1893 a great crevasse on the banks of the Mississippi river, in the immediate vicinity of Lake Providence, where the defendant lived, and where his purchases of cotton seed were tobe made for the discharge of his contract, thus rendering performance difficult.
It also appears that in view of this situation, the plaintiff sent a representative to the defendant with the definite object of procuring the latter’s consent to a cancellation of the agreement, upon his shipping enough seed to cover the amount then due; but this proposition the defendant declined — insisting on the continuance of advances.
Realizing that defendant was drawing long after cotton had commenced to open, and cotton seed was deliverable, under his contract, without any shipment having been made, plaintiff wired him to know upon what he predicated his drafts; and to this he made reply, “against cotton seed stored away in ginhouse.” A witness for the plaintiff makes this statement on that subject, viz.:
“ I was sent by the company to see (the defendant) because he telegraphed the company that certain drafts he was drawing, and for which he had no authority to draw (were drawn) against seed he had in his warehouse, as the company advanced him the full amount they agreed (to furnish), as per contract. I was instructed by the company to say that they would not pay the draft in question, but if he would ship cotton to cover drafts, and ship the seed he had on hand, they would help him further.”
He further states, that he was directed to ascertain “why he was holding the seed, when it was understood he was to ship as the seed reached him from time to time during the season;” but the defendant “ declined to give (him) any satisfactory information of what he intended doing.”
That defendant claimed to have on hand at the time about four - teen hundred sacks. That he examined them as best he could, but they were stored in such indifferent order he could not count them. That he requested defendant to allow him to examine his books, and he declined on the ground that they were not posted. That he proposed that he and defendant post the books, but this proposition was declined. That he then requested the defendant to allow him to see his gin book, so that he could estimate the quantity of seed he should have on hand, and that request was refused. The witness then stated that, from the appearance of what he saw, he supposed there were about a thousand sacks.
That the defendant said “ he would ship (plaintiff) the seed when the boats could reach his warehouse, provided we continued to pay his drafts; but if these drafts were not honored and should be returned to him he would make them good by disposing of the seed on hand.” That he “called his attention to the agreement and (the fact) that the company had more than fulfilled its part, and insisted on his shipping the seed on hand and stop talking about drafts he had no authority to draw.”
That the defendant replied “ that if the drafts were returned unhonored he would protect his friends from whom he had purchased the seed by. selling sufficient seed to cover the drafts returned.”
That he asked defendant for a bill of sale for the cotton seed on hand, and he had refused. Thathe requested of him an explanation of the expenditure of the money advanced by the plaintiff to him and to secure his agreements for the purchase of seed,” and he gave none.
The witness states that on a previous occasion he visited the defendant with reference to the crevasse and urged him to ship seed to cover the balance then due and call the contract off; that he positively declined to do so, stating that “ he could fulfil his part of the agreement notwithstanding the crevasse; that he was not held to Providence alone, and that he had funds at other points and could secure more seed than he had agreed to ship.”
Being dissatisfied with the result of his interview, the witness made
On the contrary, the defendant, as a witness, denies that it was nis intention to sell the seed to the Union Oil Company, but states that he expected to submit to the captain of the steamboat which was operating for that company a proposition in respect to the seed. That “he was simply repiling the seed so that (he) could see what he had and be able to show what he had.” That he told Mr. Wyiy, the attorney of the plaintiff, that he felt satisfied that (he) could make arrangements to pay the Standard Oil Company what he owed them and go ahead in the.business for another company.”
While the defendant claims that he had on hand at the time eighty tons of seed, yet the sheriff’s return discloses that only about seventy tons were taken under the writ of attachment, and the value of same was only six hundred and twenty-two dollars and ninety-five cents.
Defendant’s counsel point out the fact, that at the time of the attachment his mortgage note had not become due, and did not become due until the 31st of December, 1893; and that, consequently, plaintiff was well secured, and the stipulation of the contract was that defendaut should ship the seed during the season of 1393-94, which had only been open for a short time, and was at the time of seizure practically suspended.
This explanation is, to our minds, unsatisfactory. The plaintiff’s suit is upon account, as the primary evidence of the defendant’s indebtedness. The note and mortgage were only collateral security therefor. The company was engaged in the business of compressing oil from cotton seed. The contract with the defendant was entered into for the specific object of obtaining cotton seed for the purposes of their business. For that purpose they had agreed to advance money to the defendant to enable him to purchase seed and ship same to them. When purchased and stored the seed constituted a quasi pledge for the defendant’s indebtedness; and he had procured
Looking at the result of the enterprise, the plaintiffs were in the attitude of having advanced two thousand and nine hundred dollars in cash, and received nothing in return; and that of the defendant was of having received that sum, and having on hand at date of seizure only six hundred dollars’ worth of seed.
In the light of these facts, the defendant’s response to the plaintiff’s telegram making inquiry as to what he predicated his drafts upon, wants confirmation; and these facts place the defendant in the equivocal attitude of having either misstated the facts in his answer, or of having disposed of a large part of the seed in the interim between the statement and the seizure. But be that as it may, the defendant declined to make any satisfactory arrangement of the matter with the plaintiff’s agent or attorney, notwithstanding he was pressed and importuned to do so. On the contrary, he distinctly stated to them that he did not intend to pay the plaintiff anything or ship it any seed, unless it continued to pay his drafts— notwithstanding he had largely overdrawn his contract at the time.
It is quite true that the defendant did ship to the plaintiff some bales of cotton, the proceeds whereof so diminished his account as to leave only the sum of one hundred and eighty-eight dollars and thirty-three cents in excess of his two thousand five hundred dollar note; but that shipment was subsequent to the attachment, and exercises no bearing on the question of fraud. That can be viewed only in the light of an afterthought; and it is also significant that just prior to this shipment, the defendant drew on plaintiff several other drafts.
It must be borne in mind, that at the time of the interview that plaintiff’s agent had with the defendant, which is declared in the testimony supra, it is clearly shown that the Mississippi river was navigable at Lake Providence, as the steamboat belonging to the Union Oil Company was due and expected on the following day, and defendant expected to make a deal with her captain in respect to the seed which were subsequently attached.
We are of opinion that the views we expressed in the ease of Shingle and Lumber Company vs. Lorio, 46 An. 441, are strictly applicable and should govern this case.
“Plaintiffs have, on the other hand, up to date paid out the money and advanced the supplies mentioned, and not only have not received anything by way of return, but are confronted with a large-claim for damages.
“We have examined the record with great care to see whether this unequal condition of affairs was brought about by the conduct of the plaintiffs themselves. * * * It suffices to say that, in our opinion, defendant’s complaints are not only without merit, but, on the contrary, his course has been unjustifiable and his demand unreasonable.
“ There is nothing in the contract to warrant defendant in the-pretension that the plaintiffs were to continue to furnish him with money and supplies,” etc.
It is conceded, that, in order to justify a resort to an attachment-under. the statute relied upon, it is a condition precedent that the defendant must have been guilty of fraud in the sale, or attempted alienation of his property, to the prejudice of his creditors; but we think the facts we have related clearly evidence such a fraudulent intent within the meaning of that statute, and that the plaintiff was entitled to resort to the remedy by attachment.
Entertaining these views, the judgment appealed from must be so-amended as to conform thereto.
It is therefore ordered and decreed that the judgment appealed from be so amended as to reject and disallow the defendant’s demands in toto, except as to the credit he is allowed for the proceeds of cotton delivered to the plaintiff.
It is further ordered and decreed that the judgment dissolving plaintiff’s attachment be set aside, the writ of attachment and the seizure under it be revived, and, as revived, that same be maintained and enforced on the property attached, and that the privilege of plaintiff as attaching creditor be recognized and enforced upon the property attached. »
It is finally ordered and decreed that the judgment be, in all other respects, affirmed, and that the defendant be taxed with the costs of both courts.
Rehearing
On Rehearing.
No objection is made in the application to the opinion in so far as it-appertains to the appellee’s motion to dismiss, but it rests mainly
Our opinion is predicated upon the stipulations of the following -written contract, viz.:
“ Lake Providence, La., April 25, 1893.
“ For and in consideration of an advance of twenty-five hundred -dollars made by the Standard Cotton Seed Oil Company, of New Orleans, this advance to be paid by honoring drafts to the amount of five hundred dollars per month, I bind myself and agree to ship to the said Standard Cotton Seed Oil Company during the season of 1893-94 four hundred tons and as much more of good, sound cotton seed as I can buy or control, this seed to be weighed on landing at .Lake Providence by clerk of steamboat, and credited to me at the .market price and one dollar per ton commission.
“As security for the payment of this advance and the delivery of the four hundred tons of good, sound seed, I will execute a mortgage on the ginhouse and contents, and transfer the insurance to the .Standard Cotton Seed Oil Company. I also agree to give and take interest at the rate of eight per cent, per annum; that is, I will pay interest on the money from date until payment, and I am to be •credited with interest on all shipments of seed. This signed in •duplicate.
“(Signed) • Peter Matheson.
“Witnesses:
“(Signed) A. B. Johnston.
“W. E. Powers.”
To this contract, the obligor, Matheson, gave his note and mort•gage for twenty-five hundred dollars as collateral security.
The suit is brought upon an open account for about two thousand nine hundred dollars, money advanced under the foregoing contract —embracing overdrafts to the amount of about four hundred dollars.
The consideration of said engagement on the part plaintiff was that ■the defendant should ship to them “ during the season of 1893-94 four hundred tons, and as much more of good cotton seed as (he) can ■buy o?’ control; this seed to be weighed on landing at Lake Provi
To re-enforce this stipulation the contract further provides, that “ as security for the payment of this advance, and the delivery of the four hundred tons of good cotton seed,” Matheson agreed to execute a mortgage in favor of the oil company.
Our opinion finds, as, a fact, that the oil company not only advanced to the defendant the whole amount of twenty-five hundred dollars in cash on his drafts, without question, but that they advanced to him four hundred dollars more. That these advances were kept up continuously from the date of the contract to the 25th of October of the same year; and during that period of time not a single pound of cotton seed was shipped by the defendant to the company.
That, realizing that defendant was drawing long after cotton had commenced to open, and cotton seed was deliverable, under their contract, without any shipment having been made, plaintiff wired to defendant to ascertain upon what he predicated his drafts, to which he replied, “ against cotton seed stored in my ginhouse.”
That soon afterward plaintiffs sent a representative to Lake Providence to see the defendant and ascertain the facts, and, if possible, to obtain a settlement of their account.
That representative was particularly directed to ascertain “ why (the defendant) was holding the seed, when it was understood he was to ship as the seed reached him from time to time during the season.”
That in pursuance of those instructions, said representative called on the defendant and “ made demand upon him that he comply with his contract and ship the seed he had on hand; and he refused, giving as his reason that it would occasion him extra expense to haul the seed to the landing,” and further stating that “ he would ship when the boats could reach his warehouse, provided (the company) continued to pay his drafts; but if these drafts were not honored and should be returned to him, he would make them good by disposing of the seed he had on hand.”
That he requested of the defendant an explanation of the expenditure of the money which the oil company had furnished him, and he declined to give any.
That immediately after said interview it was discovered that the defendant was preparing his cotton seed for sale, and was actually
Our opinion finds, as a fact, that instead of defendant having accumulated four hundred tons of cotton seed, as stipulated in the contract, he had on hand, at date of the seizure under the attachment, only about seventy tons, worth six hundred and twenty-two dollars and ninety-five cents, notwithstanding he had received and consumed over twenty-nine hundred dollars of the plaintiffs’ money without making any shipments to them in the meanwhile.
It finds further that the company was engaged in the business of compressing oil from cotton seed, and that the contract with the defendant was entered into for the express object of obtaining cotton seed for the purposes and uses of its business. That it was for that express purpose it had agreed to and did furnish defendant with money to enable him to purchase seed and ship same to them. That when purchased and stored the seed constituted a quasi pledge for defendant’s indebtedness; and that plaintiffs’ money having been invested in the seed, presumably, it had a right to rely upon same as security for its outlay.
That, looking at the result of the enterprise, plaintiffs were in the attitude of having advanced twenty-nine hundred dollars in cash, and received no return therefor.
Our opinion concludes with this statement, viz.:
“ In the light of these facts, the defendant’s response to the plaintiffs’ telegram, making inquiry as to what he predicated his drafts upon, wants confirmation; and these facts place the defendant in the equivocal attitude of having either misstated the facts in his answer, or of having disposed of a large part of the seed in the interim between the statement and the seizure.
"But, be that as it may, the defendant declined to make any satisfactory arrangement of the matter with plaintiffs’ agent or attorney, notwithstanding he was pressed and importuned to do so. On the contrary, he distinctly stated to them that he did not intend to pay the plaintiffs anything or to ship any seed, unless and until they paid his drafts, notwithstanding he had largely overdrawn his contract at the time,” and had shipped them no seed.
- And now we are for the first time confronted with the following statement, which appears to be wholly at variance with the terms of
“There was no stipulation to buy seed for the plaintiff; plainly, every pound of seed which defendant should ship to plaintiff was to be his own and credited to him at market prices ruling at the date of shipment. The advances were not stipulated to be for the purpose of enabling defendant to purchase cotton seed, nor could such have been the intent of the parties, for the contract expressly provided for the advancing of the entire sum before the season of ginning and consequently before any seed could be purchased. The plain meaning of the agreement was that the money was loaned to defendant for his general convenience, and in consideration of its use he was to return it with interest, and additionally sell his cotton to the plaintiff at one dollar per ton above the market price.” Defendant’s brief on application for rehearing, page 3.
On the contrary, the agreement declares that the defendant “in consideration of an advance of twenty-five hundred dollars * * * binds himself and agrees to ship to the (oil company) four hundred tons of cotton seed;” and “ as security for the payment of this advance and the delivery of four hundred tons of good, sound seed,” he obligated himself to execute his mortgage.
Have these plain and unambiguous stipulations of the defendant’s written contract anything like the significance, “that the money was loaned to defendant for his general convenience?”
Quite the contrary.
Yet that statement was necessary for the purposes of this application, and to fortify the defendant’s contention that plaintiffs were amply secured by the mortgage.
But the mortgage was but an incident of the transaction, and only a collateral security for the advances of money plaintiffs made.
Let us contrast the facts thus related, and not denied, with those of the case of Winter vs. Davis.
We make the following extracts therefrom, as they appear quoted in brief of defendant, on this application, viz.:
“In the case of William Winter vs. Nitore H. Davis (No. 12,024), decided by your Honors on the same day as the instant case, the agreement between plaintiff and defendant was embodied in a letter and expressed in these words:
“ I do not hesitate to say that I will ship you at least twenty-five*1337 hundred bales of cotton, provided you will render me the necessary financial aid. I agree to pay you fifty cents commission on each bale you sell for me, and will further agree not to ship cotton elsewhere, or to sell a single bale in this market, but will ship every bale to you.”
Upon this basis the plaintiff advanced large amounts to defendant. The court found upon the evidence that defendant paid other debts than plaintiffs, made a dation to his wife, and actually sold to another party thirty bales of cotton, and received the price.
Upon these facts the court, Mr. Justice Breaux being its organ, said:
■ “ It is further urged by the plaintiff that the defendant was under obligation to buy cotton and ship it to him; that throughout September and to the 7th day of October, 1893, he seemed to have shipped to him, Winter, in accordance with the contract; that on the 7th of October he, despite the contract, shipped about thirty bales of cotton to others than plaintiff, and received the money therefor.
“ The advances, as we understand, were not made for the sole purpose of buying cotton. They were made to aid the defendant in his business. He, as an inducement, promised to ship cotton to the plaintiff, which the latter was to sell and pay himself from the proceeds.
“ There was a breach of contract, a failure to comply with an obligation, not of such a character, however, as to justify an attachment.”
In that case defendant complied with his contract to ship plaintiff twenty-five hundred bales of cotton, and shipped cotton to him during the month of September and part of October; but on the 7th of the latter month, he shipped about thirty bales to other parties, and received the money therefor. But plaintiff’s advances were not made for the sole purpose of enabling defendant to buy cotton. They were made to aid him in his business; and “ he, as an inducement, promised to ship cotton to the plaintiff, which the latter was to sell and pay himself from the proceeds.”
The two cases are altogether dissimilar as to their facts.
The oil company was not engaged in the business of a factor, commission merchant or money lender; nor was the defendant engaged in business as a retail country merchant. Their
The oil company’s representative, finding the defendant determined to put it at defiance, gave him a written protest, and placed the matter in the hands of a local attorney. The attorney examined into the situation of affairs, and, finding them as they had been reported to him, he at once procured the attachment of the defendant’s property.
Under this state of facts can it be affirmed that; Matheson was about to assign or dispose of his property,-or some part thereof, with intent to defraud his creditors within the meaning of Code of Practice, Art. 240, par. 4?
In Herman vs. Amedee, 30 An. 394, it was held that the fraudulent intent necessary to support an attachment is not shown by the mere fact that a merchant is selling and paying off his debts, including that of plaintiff. That was defendant’s situation in Winter vs. Davis.
Very much the same may be said of the principle which was announced in Hernsheim vs. Levy, 32 An. 340.
In Lehman vs. McFarland, 35 An. 624, it was held that an attach
In Wetherow vs. Oroslin, 24 An. 128, the court sustained an attachment on the faith of defendant’s statement “that he owed the plaintiff some money and was unable to pay them at the time; that they were going to sue him, and he wanted to keep his property, but wanted to pay them.”
In Boyd vs. Labranehe, 35 An. 285, the court sustained an attachment on the ground that plaintiff had good reason to believe that defendant was about to dispose of his property to defraud his creditors, and said:
“Promptness of acfion was the one thing needful. Plaintiff was not required to wait until events had shown what defendant really intended to do. They acted on the state of facts as they existed at the moment,” etc.
In Stephens vs. Helpman, 29 An. 635, the court justified an attachment on the ground that the defendant had given an unfair preference to some of his creditors, and had made representations to the plaintiff, upon which he acted.
In Newman vs. Kraim, 34 An. 910, the court sustained an attachment on the ground that the defendant had made threats that he wonid dispose of his property to protect himself, if he was sued.
It is in proof that plaintiffs wired defendant to ascertain upon what he predicated his overdrafts, and that his response was upon cotton seed stored in his ginhouse; whereas, in fact, defendant either misrepresented his real situation, or he fraudulently disposed of a large part of his cotton seed subsequently.
This statement was at first made to influence the plaintiffs to continue to honor his overdrafts, in the expectation of being reimbursed from cotton seed in store; and, failing in the accomplishment of this design, defendant threatened to sell his seed to a rival company, if plaintiffs declined to pay his overdrafts in the future.
These facts fulfil all the requirements of the Stephens and Newman eases.
The phrase intent to defraud finds an excellent interpretation in Chaffe, Powell & West vs. Gill, 43 An. 1053, in which we held that, as the property of the debtor is the common pledge of his creditor,
The instant ease presents an even more forcible illustration of that principle, in that the defendant had contracted to purchase, control and ship to plaintiffs the cotton seed he had stored in his ginhouse, and upon which his overdrafts had been drawn; and his openly declared intention to sell them, if plaintiffs refused to pay his future overdrafts, was not only a violation of his contract, but an attempt to deprive them of property which was stored for their account, and was a security for the advances they had already made to defendant on the faith of it.
Manifestly these transactions evidence an intent to defraud.
For the foregoing reasons our original opinion and decree are maintained.
