17 La. 508 | La. | 1841
delivered the opinion of the court.
The syndic of the estate of Oox placed on the tableau of distribution a claim of J. "W. Stanton, the present appellant, which, with others, was referred by him to the court, in the following words: “ J. Yr. Stanton, [509] $3361, and damages, $1500, together, $4861; — by the books of the estate, there appears to be due but $2057 25 ; and that amount the syndic claims a right to place tp the credit of J. F. Smith & Oo., who are largely indebted to the estate.”
To the claim, as thus presented, Stanton made opposition, and insisted on his right to be placed absolutely on the tableau for $4500, for goods of his, illegally taken and sold by Oox.
The record shows, that goods held by Stanton, for sale under consignment, were taken by Oox, and sold at auction, to pay a debt, supposed at that time to be due by Stanton, who was absent. The goods had been confided by Stanton to Smith & Oo., who consented to Oox’s proceedings. They were sold at a sacrifice; and the court of probates considered, that the opposing creditor was entitled to a fair indemnity, and by its judgment charged the estate with the goods, at the price at which they were limited by the consignors of Stanton. This we consider a fair and just standard of indemnity, especially as the pretext for the irregular proceeding arose out of an indorsement of Oox for Stanton of a bill of exchange, which the former had taken up after protest; although, in point of fact, the first set of exchange had been paid without the knowledge of the indorser, and of the Commercial Bank, the holder of the second under protest. The fault was attributed .to the bank, whose cashier promised on its part to make up any loss or damage arising from the sale of the goods.
The judgment, under this view of the case, would not be disturbed by us, if it had not been for the omission, inadvertently, of an item of $545 88, which was not contested, and which must be added to the sum allowed.