| La. | Feb 15, 1834
delivered the opinion of the court.-
In this case, the plaintiff claims from the defendant a gross sum of six thousand dollars. He obtained judgment in the court below for three thousand four hundred and eighty-five dollars and ninety-eight cents, from which the defendant appealed.
The claim is made in consequence of various overcharges, as alleged by the petitioner, against the defendant, in rem dering final accounts, relating to a joint adventure in merchandise sent from New-Orleans to Tampico, in the republic of Mexico, by J. W. Zacharie & Co., to Harrison, Brown & Co., to be sold by the latter for joint account of the two houses. The amount paid for the goods in New-Orleans? and charges for shipping, is thirteen thousand three hundred and twenty-seven dollars. The gross amount of sales, as rendered by the consignees in Mexico, is fifty-five thousand thirty-nine dollars and forty-three cents, which is reduced by charges to sixteen thousand three hundred fifty-nine dollars and eight cents. Half this sum is allowed to the plaintiff, and he now claims six thousand dollars in addition, on account of improper and illegal charges by the consignees. These unjust charges, as complained of, relate to duties on the goods, commissions, storage, packing, transportation from
In relation tot'nc overcharge on account of duties paid to the custom house officers at Tampico, the principal item arises from the diiference in amount caused by the payment having been made partly in depreciated paper of the Mexican government, instead of the whole having been paid as charged in account, in current money or specie. As to the other charges, alleged to be exorbitant and erroneous, their propriety depends on the custom of merchants in Mexico, the agreement of the parties to the present suit, and evidence of the case in relation to these points.
Before, however, enter-ng on the investigation of these subjects, wc must dispose of certain objections made by the counsel for the appellee, to the plaintiff’s right to sue in the present form of action. It is instituted against one only of the partners of Harrison, Brown & Co., claiming judgment against him in solido. The defendant being a partner of this firm, which is commercial, as all the partners are answerable in solido to creditors of the house, any one of them may be sued separately. Considering J. W. Zacharie & Co., in the sole light of creditors, they most clearly have a right to maintain the present suit. But, if as the truth is, they must be viewed as partners with the house of Harrison, Brown & Co., in this particular transaction, and this partnership be commercial, then it is contended on the part of the appellant, that as the present suit is in character, one for the settlement of accounts, all the partners of the firm doing business in Mexico, should have been made partners to the action. • The partnership of J. W. Zacharie & Co., and Hamson, Brown & Co., may be considered as composed of two parties only, by the two companies, and as either of them may be legally represented by a single partner of these separate houses, the defendant in the present instance may legally be called to account for the transactions of his firm. If, to this consideration, he added the impossibility of making his other partners parties to this suit, as they do not reside within the jurisdiction of the
The evidence in relation to the alleged overcharge of duties paid, is not explicit. In the account rendered by the consignees, twenty-five thousand six hundred eighty-four dollars and fifty-three cents, are charged as having been paid. According to a certificate of the collector of the port of Tampico, it appears, if we read it right, that twenty-three thousand three hundred and twenty dollars and fifty-seven cents only were paid at the custom house, which seems to show an overcharge of two thousand three hundred and sixty-three dollars and fifty-six cents, one half of which was made to the prejudice of the plaintiff. Whether this amount was really expended in the exercise of what the merchants of Mexico term economy, but which might bear the harsher name of bribery of the custom house officer, to aid . ... _ . ... in smugling goods, we consider an indecent inquiry m a court of justice, and shall, therefore, pass the subject in silence, and will consider the sales bona fidely paid, as amounting to twenty-three thousand th.ee hundred twenty dollars and fifty-seven cents. Of this amount, the testimony of the cause raises a violent presumption that two thirds were paid . ... . ‘ i . i in libranzas, a species ol government paper, which, at the time, was at a discount of about twenty-five per cent. As this means of payment was not procured at the instance and request of the plaintiff, but obtained solely by the consignees, at their own charge and risk, it is contended on their part, that the appellee ought not to be allowed to profit by A L A sr j such payment. We, however, accord in opinion with the judge a quo on this point, that as these treasury warrants, they may be so called, were used in the discharge of a debt, common to both plaintiff and defendant, any benefit resulting ought to be reciprocally enjoyed. As to the charges of comxnission, we trunk the court below erred. The goods were 0 shipped to Tampico at the instance of Harrison, Brown & Co.. 1 1 A “ and at the same time an offer was made to J. W. Zacharie & Co., to become equally interested in the adventure, which was accepted, accompanied by a proposition that neither
The goods were transported from Tampico to the interior, and there sold, as appears by accounts of sales, copied into the record. The expenses charged for transportation seem to be very heavy, but nothing shows that they are not such as are customary. It is shown by the evidence, that merchandise is sometimes sold for a kind of currency which is below par, from one and a half to two per cent., and in the winding up of the accounts of sales, a charge is found of four per cent, discount, on account of difference of exchange, freight and escort to the coast. The accounts of sales themselves do not show that the goods were sold for this inferior currency; they must, therefore, be presumed to have been sold for good money, which renders improper the charge for difference of exchange, say one and a half per cent, on forty-nine thousand nine hundred eighty-two dollars, net proceeds of sales in the interior. From the principles above stated, it results that the plaintiff has a right to recover eleven hundred eighty-one dollars for overcharge of duties, one thousand nine hundred forty-three dollars and thirty-seven cents difference between libranzas and currency, and three thousand seventy-four dollars and eighty-seven cents difference of exchange, improperly charged, and commissions of plaintiff’s cotton goods shipped, amounting to three thousand eight hundred sixty-one dollars and fifty-four cents,
As to the approval of the acts by Patterson, a partner of the house of J. W. Zachario & Co., the only evidence in J support of it is found in the answers to interrogatories of a brother of the defendant. The accounts are not signed by person said to have acknowledged their correctness, and
Why, then, any of the money for which the goods were sold remains uncollected at this time, does not appear from the evidence. The firm of Harrison, Brown & Co., by remitting the full amount of the sum, which, according to the estimate, was due to the plaintiffs, seem to have virtually agreed that collection has been duly made, or that they took on themselves the responsibility of collecting.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled, and it is further ordered, adjudged and decreed, that the judgment be here rendered in favor of the plaintiff and appellee, and against the defendant and appellant, for the sum of three thousand eight hundred sixty-one dollars and fifty-four cents, with costs in both courts.