Wilcoxon v. Buford's Heirs

10 La. 183 | La. | 1836

Martin, J.,

delivered the opinion of the court.

The plaintiff claims a sum of money which he was compelled to pay, as the surety of the defendants’ ancestor, in a twelve months’ bond.

The defendants pleaded that a slave of their ancestor-was sold under an execution to satisfy the claim of the creditor in the twelve months’ bond, and the plaintiff by fraud and misrepresentation prevented several individuals and others who were desirous of purchasing the slave which had been seized, from bidding his value for the benefit of the family, whereby said slave was adjudicated to him for a very small sum, leaving a balance still due to the creditor in the bond, which the plaintiff afterwards paid, and which is now the object of the present suit to recover: While on the other hand it is urged, if the persons who attended the sale had not been prevented from bidding by the fraud and misrepresentation of the plaintiff, the slave would have brought a sum greater than that due to the creditor, leaving a considerable balance for the defendants; wherefore they claimed damages in reconvention.

The district judge refused them leave to introduce witnesses to establish these damages; being of opinion they could not be demanded in reconvention, but must be sought for in a separate action : Whereupon a bill of exceptions was .taken, and the defendants are now appellants from the judgment afterwards rendered against them.

Where the debt claimed by the plaintiff, awl soughtfor?nthe answer of the from one andthe tion, the latter and”1 legal ¿tí-mand, which inTeconyentfom man°isWareedifferent, but have the same origin, and aré intimate-ing°ntheCtooase" quenee of the same transaction, the defend-vene^íe plain" tiff for damages in his answer in the same suit,

The debt which the plaintiff claims, and the damages sought by the defendants, arose from one and the same transaction.

The sale of the slayé as shown by the plaintiff, left a balance due which he was obliged to pay; and it is contended by the defendants that it would have rendered this payment by the plaintiff unnecessary, and entitled them to the excess of the price, had not the plaintiff by his fraud and misrepresentation discouraged bidders at the sale. The demands are different but have the same origin and are inti-ma'tely connected; being the consequence of the same transaction. The district judge, in our opinion, erred in declining to receive evidence of the reconventional demand,

tt is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and " < — l ' reversed ; the verdict set aside and the cause remanded for a i>ew trial, with directions to the district judge to permit the defendants to introduce evidence in support of their claim in . , 11 reconvention; the plaintiff paying the costs of this appeal.