Woodlief v. Moncure

| La. | Nov 15, 1865

Labauve, J.

This suit is brought to recover of the defendant the sum of ¡5534 50. The plaintiffs say that Hopkins had sold said Moncure sugar and molasses, deliverable on the plantation on Bayou Black; that said Moncure had received said sugar and molasses, and paid on account $14,992 80, leaving abalance due said Hopkins of $534 50; and that they paid said balance to said Hopkins as the negoliorum gestores of said Mon-cure, taking, at the same timo, a transfer.

The defendant answered by a general denial; and, in substance, denied that said plaintiffs acted as negotiorum gestores of defendant, and that, on the contrary, they had acted in their own interest, and for themselves, in effecting, as brokers, a sale of Wvndham Bobertson’s plantation and crop to Alfred Hopkins ; that, in order to close the said sale and realize fclieir commission as brokers, petitioners advanced the sum now claimed, etc.

The judge below, after hearing the testimony, gave judgment in favor of defendant, and plaintiffs appealed.

.The testimony shows that the defendant had agreed to buy the crop at city prices ; that the sugar and molasses amounted to $15,527 38, and that the estimated freight from the plantation to New Orleans was $534 50 ; that the defendant paid $14,992 80, and refused to pay the balance of $534 50, on the ground that he took the sugar and molasses on the plantation, and tlie probable freight must be deducted. The plaintiffs were not the brokers in selling' the crop, but they were so in the selling of the plantation for $180,000. The commission was two per cent, on the whole amount, and they received $3,600 for brokerage. The cash payment on the plantation was $50,000, to be made up in a certain way ; and it required this disputed balance of $534 50 to complete the cash ; and it is in evidence that, if this disputed balance had not been paid, there would have been no sale. The plaintiffs paid the disputed balance to make up the deficit, and said they intended to sue the defendant for it.

The plaintiffs predicate their demand on two grounds : 1. They acted as negotíorum gestores for defendant in paying said balance. 2. That they took, at the same time, a subrogation from Hopkins to all his rights against said Moncure.

There is no evidence in the record showing the alleged subrogation.

The question, whether the plaintiffs acted, as alleged, as negotíorum ges-tores or not, depends on facts. Did the plaintiffs act as friends, and for the interest and advantage of the defendant, in taking upon themselves to pay this disputed balance ? If the answer be in the affirmative, they must recover; and, if it be in the negative, there must be judgment for the defendants. It requires no argument to demonstrate that they acted for themselves, for their own advantage and interest, well knowing that the defendant objected to pay said balance, and giving- his reasons for his refusal. When they paid this balance, they said they would sue the defendant for it. The defendant had no interest in the change of creditors. The plaintiffs, as it seems, paid this balance to conclude a sale, and to receive a commission of $3,600. For these reasons, and those given by our learned brother below, the judgment must be affirmed. 14 A. 734.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.