| La. | Feb 15, 1838
delivered the opinion of the court.
The plaintiff claims from the defendant, heir of Nat. Scales, jr., a sum of one thousand one hundred and ten dollars and fifty cents, and the proceeds of a parcel of sugar, which the latter undertook to sell for the plaintiff.
The defendant pleaded the general issue and prescription, and set up a claim in reconvention or compensation, for a sum of one thousand four hundred and forty-nine dollars and seventy-five cents, alleged to be received by the plaintiff for the deceased; and further, the price of a slave of the deceased, sold by the plaintiff. There was judgment for the plaintiff for the value of the sugar only, and the defendant appealed.
The plaintiff has prayed that the judgment be so amended as to allow him one thousand one hundred and ten dollars and fifty cents, the sum first claimed in the petition. The defendant’s counsel has contended that the court erred in not sustaining his plea of prescription, and in failing to deduct from the value of the sugar, the expenses attending its shipment and sale.
It appears to us that the plea of prescription ought to have been allowed. The receipt bears date the 30th of March, 1820, and the service of process in this suit was made on the 23d of June, 1835, so that the suit was brought upwards of fifteen years and two months after the date of the receipt. The prescription is that of personal actions, which, until the promulgation of the Louisiana Code, in 1825, was ten years, whether the parties were absent or present. Admitting that the defendant’s ancestor died before the promulgation of that code, the prescription is afterwards double, the defendant residing out of the state. Counting, therefore, about five years and five months, elapsed before the promulgation, four years and five' months had still to run, the double of which is eight years and ten months, which, added to five years and five months, make fourteen years and three months; so that, assuming that eleven months and twenty-five days was a sufficient time for conveying the sugar to St. Louis, where it was to be sold, and bringing the proceeds to
The receipt, which is the basis of this action, is in the following words:
“Received this 30th day of March, 1820, of Joseph Thompson, eleven hundred and ten dollars, and fifty cents, which cash; also, twenty thousand pounds of sugar, shipped on board of the steamer George Madison, shipped to St. Louis, which I promise to sell to the best advantage, and account to the said Joseph Thompson for the net proceeds thereof.”
(Signed,) “NAT. SCALES.” .
The difficulty consists in ascertaining the character of the bailment of the money mentioned in this receipt. The plaintiff considers it as a deposit; the defendant as a payment of an antecedent debt. The district judge has considered it as a loan ; hence he has concluded that the plaintiff’s claim thereon, is barred by the lapse of three years. We do not concur with the defendant’s counsel, in considering the bailment as the payment of an antecedent debt, nor with the plaintiff, in considering it as a deposit; for the receipt connects the cash with the sugar, as it uses the words, which cash, also. The cash and sugar appears to us an object of account. The cash was, in our opinion, not to be kept by the defendant, either for himself as a payment, or for the plaintiff as a deposit; probably it was to be employed for the benefit of the plaintiff, on the trip to St. Louis, and accounted for on his return with the’proceeds of the sugar. The plaintiff contends, that the defendant cannot avail himself of the pleas of prescription, as the code of 1808, under which he received the bailment, provides, that “ those who possess for others and not in their own name, cannot prescribe, whatever may be the time of said possession. Thus, farmers,, tenants, depositaries, usufructuaries, a,nd all those
The receipt, in our opinion, is not evidence of a deposit. If a man, going on a voyage, delivers property to his friend, and takes his receipt, he may offer it as the evidence of a deposit; it is otherwise, if the friend deliver property to the man going on a voyage. For the contract of deposit is essentially intended for the safety of the thing deposited, which is less safe in the hands of the man who goes on the voyage, than in that of him who remains at home.
Neither the cash nor the sugar were intended to remain in the possession of the bailee, further than it might be necessary for the profitable disposal of them. It must be presumed, as it appears the intention of the parties was, that they were to be disposed of shortly after the arrival of the defendant’s ancestor at St. Louis; and as soon as this was effected, the obligation of the latter to account for the proceeds, arose. This obligation was one which the plaintiff might have enforced, on the return of the defendant’s ancestor; or as soon, if he did not return, as a reasonable time for his doing so had elapsed; and from that time, prescription began to run.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and proceeding to give such a judgment as in-our opinion ought to have been rendered below, it is ordered, adjudged, and decreed, that there be judgment for the defendant, with costs in both courts.