2 La. Ann. 876 | La. | 1847
The judgment of the court was pronouced by
The defendants are sued for a balance alleged to be due on an open account .with interest, and a judgment in .solido against them is prayed for. The cause was .tried in the court below by a jury, who gave a verdict for the plaintiff, and from the judgment rendered thereon.tbe defendant, Williams, has appealed.
From the evidence, it appears that the defendants entered,into,a partnership for tlie purchase of slaves in Virginia, for re-sale, aud that two lots or gangs were purchased and sold. Of those first purchased several were re-sold in the State,of Mississippi, and the residue in Louisiana. The second lot appear to have been all disposed of in New Orleans. The plaintiff was employed in Virginia, as the agent of .the defendants, in making purchases in that State of the second lot; $30,000 were placed in his hands, for that purpose ; and upon .that sum it was agreed that he should receive a.commission of five per cent. The plaintiff credits the defendants with .the sum of $20,000 received, and debits them with commissions, .and with .various disbursements made for the .defendants in the purchase of slaves, and in defraying expenses incurred in the execution of his agency. He also charges them with the price of a slave and of a ¿horse, sold to them. The defendants deny that they are commercial partners, and plead the prescription of three years, as .applicable to the claim .for commissions. ' *
Before proceeding to the .merits, it becomes necessary to .consider a bill of exceptions, taken to‘the opinion of the judge admitting in .evidence part of two statutes of Virginia, the first declaring slaves to be personal property, and the second regulating the rate ,of interest, on the ground that ¡the whole of each of those statutes, and not extracts from them, should have been produced. The judge did not, in our opinion, err. It .was sufficient for the plaintiff to produce an authenticated copy of those sections.only of the statutes of Virginia upon which he relied. 5 Rand. 126. The plaintiff' was .bound to prove the foreign law on which he relied as a fact; but it would be /unreasonable to require of him to produce more of that law than was necessary to establish his right to recover. -Inconveniences.may no doubt arise from permitting a part, instead of the entire .law, to be offered in evidence; but if the party against whom it is offered have reason to believe that other provisions of the particular law are favorable to himself, it is incumbent on him to produce those parts. If he be surprised by the introduction of such.extracts in evidence on the trial, the court would, upon a proper showing, grant .time .for .procuring the
The fact that slaves are personal property in Virginia, is sufficiently proved. But it is contended that the partnership was formed in Louisiana, where the defendants resided ; that the slaves were purchased for re-sale in this State ; that upon their introduction into this State they became immovable by destination of law; and that.no other than an ordinary partnership could exist in relation to them. It is shown that a partnership existed between the defendants prior to the commencement of the plaintiff’s agency, and that a part of their common slaves were sold in the State of Mississippi. The subsequent purchases .for.the New Orleans market wore continued acts of the same partnership. As the joint purchasers of personal property for sale, the defendants became commercial partners, and are liable as such to the plaintiff. C. C. 2796.
Two sums have been awarded to the plaintiff by the jury, which we think are not supported by the evidence, and must be deducted from the judgment. The first isa sum.of $500, charged as having been advanced by the.pjantiff for the use of the partnership. This item is supported alone by the answers of the defendant Sullivan to interrogatories. Those answers are binding only as between the party interrogating and the party interrogated. The appellant, Williams, had no opportunity of a cross examination, and as to him they have no effect. Johnson v. Marsh ante p. 772. Morrill v. Carr, ante p. 807. The second item unsustained by proof is one of $140, for the price of a horse. There ;is no.evidence showing that the disbursement was for the use of the partnership.
We think that the prescription .of three years is not .applicable to the plaintiff’s ciaim for commissions. The plaintiff acted in the capacity of an agent, and bekings to none of the classes of persons enumerated in the articles of the Code which treat of .the prescription of three years. C. C. 3503, 3504. We do not understand the case of Coote v. Cotton, 5 La. 12, as deciding that salaries due to agents.are prescribed in three years, nor that agents employed for the purchase of slaves stand upon a different footing from other mandataries. The court only determined that the plaintiff in that case was a secretary, and that his wages as such were, under article 3503 of the Code, prescribed by three years.
The section of the Virginia statute in relation to interest, which has been offered by the plaintiff, establishes no rate of interest in the.absence of an agreement of parties, but merely declares contracts null in which a higher rate than six per cent is reserved or taken. The plaintiff’s claim for interest must rest upon our own.laws. Previous to the act of 20 February, 1839, s. 15, repealing the 554th art. off the Code of Practice, no interest was due upon unliquidated demands, 'even from the date of judgment. We have uniformly held that, since the passage of that act, all sums due on .contracts bear interest from judicial demand, even where none has been stipulated, and the demand is unliquidated. We consider the plaintiff entitled to legal interest on his demand, which is based on a contract, from the date of the repealing statute of 1839.
Itis urged that a charge of $5,000 in the plaintiff’s account, is unsupported by evidence. The proof by which it is sustained is a receipt, signed by Getting, in these words: “Received, 3d January, 1834, of Luther O. Sullivan five thousand dollars, to be accounted for in negroes to the said L. O. Sullivan,
After deducting from the judgment of the lower court the two sums which we' consider unsupported by proof, there remains due $1,799' 03| for' whieli sum the judgment of the lower court ought to have been given, with five per cent interest, from the 20th of April, 1839, The defendant,. Sullivan, has not appealed, and as to him the judgment must- remain'undisturbed. It is therefore ordered that, as far as relates to-the defendant Williams, the verdict of the jury be set aside, and the judgment of the District Court be-reversed.- It is further ordered that the plaintiff recover of the defendant Williams, the sum of $1,799 03, with five per cent interest thereon from the 20th day of April, 1839; the plaintiff paying, the-costs of this appeal, and the defendant those of the court below.