18 La. Ann. 606 | La. | 1866
The principal and main question upon which the solution of this case depends, is one of delivery.
Z. G-. Biché, having sold a lot of cotton to -the plaintiff, gave him a receipt as follows:
Avoyelles le 23 Decembre 1863.
Bepu de Emile Tanneret la somme de trois mille trois cents piastres en plain paiement de huit mille livres de coton en grain a raison de onze cents la livre. II est convenue que je dois eplucher et emballer ce coton quand Mr. Tanneret me fournira la toile et la corde necessaires á l’emballer; il est de plus convenue que le dit coton est aux risques et periles du dite Tanneret, hors de eeux que pourraient resulter de ma propre negligence. (Signed) Z. G. Biche.
The defendants, W. A. Gordon and Castillo and Césaire Lemoine, caused to be seized, on the 13th October, 1865, as the property of said Z. G. Biché, a lot of cotton containing about 35,000 pounds in the seed, situate on the plantation of said Biché, in a house once occupied by Paulin M. Grimillion.
On the 31st October, 1865, fte pleáfttiff; pljijpÍBg t¡^e goítpjj p;s bifi ^ppertjfj enjoined $)§ gffe
Joseph T. Dueoté. * * * When Biché sold the cotton to plaintiff, he pointed to the cotton in the house above stated, and said he would deliver him such cotton. * * * *
The judgment, upon which the execution enjoined issued, homologated the account of tutorship rendered by Z. G. Biché to his ward, Césaire Lemoine, and was rendered in favor of said Césaire Lemoine against his said tutor, Zerbin G. Biché, for the balance of of six thousand three hundred and thirty-five dollars and seventy-five cents, with five per cent, interest per annum from the 1st of September, 1865, until paid.
This judgment is clearly executory, and execution properly issued. J. B. Capdeiville v. Joseph Erwin, Sheriff, et al. 13 An. 286.
The District Court dissolved the injunction, and the plaintiff appealed.
From the above testimony, we are satisfied that the cotton bought by plaintiff was never delivered to him, and that it was liable to be seized by the creditors of said Z. G. Riché.
The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer. C. C. Art. 2452. Marcadé 6, pages 380, 221.
Personal property sold and not delivered, is liable, in the hands of the obligor, to seizure and attachment. C. C. Art. 1917. 1 An. 59. 3 An. 462. C. C. Arts. 2243.
This cotton was sold by weight at eleven cents per pound, and until it was weighed, it was at the risk of the vendor (C. C. Art. 2433); then it was his property: res perit domino.
It is therefore ordered and decreed that the judgment appealed from be affirmed, with costs.