Zino v. Verdelle

| La. | Jan 15, 1836

Bullard, J.,

delivered the opinion of the court.

This suit was instituted by Jacques Zino, now absent from the state, but, as is stated in the petition, represented by Pierre Escalón, his attorney in fact, to recover of the defendant the price of certain goods, wares and merchandise, which he alleges he had sold to the latter through his aforesaid agent, together with the hire of certain slaves. The defendant, in his answer, denies that he is indebted to Zino; he denies the powers of Escalón to sell as agent, and that the latter sold him any thing as Zino’s agent. He further, pleads prescription.

In the progress of the trial, the plaintiff produced a power of attorney, passed before a notary, by which Escalón was constituted the agent of Zino, during his absence, with authority to manage, conduct and administer his property and affairs of every kind in the State of Louisiana : to claim and receive-all kinds of property and sums of money; to give acquittances arid receipts; to settle all accounts, and to sue, compromise, &c. Pierre Escalón, the agent, was then offered as a witness to prove the plaintiff’s demand. His admission was opposed on the ground that the power of attorney does not contain the authority to sell. That objection being sustained by the court, the plaintiff’s counsel took a bill of exceptions. The competency of the agent to testify for his principal, is too well settled to require any reference to authorities, and indeed the principle is not contested by the counsel for the defendant. And the objection to Escalón is, not that he was the altorney in fact of the plaintiff, but that he had no power to sell, as is alleged in the petition. We think the court erred in sustaining the objection to the witness. No exception was made to the manner in which the suit is brought, and we are bound to consider it as if the petition had been signed by Zino himself. He sues for the price of certain merchandise sold by his agent, and thereby necessarily adopts and ratifies the sale, and it becomes quite immaterial whether the agent . i - . . „ lt had any authority, originally, to sell or not.

pi.N-pa[e for the price of goods sold and delivered by ids “|entfaottt01'an5 thereby ratifies the sale, it is quite immale-rial whether the agent had any origSiyornot!

As the case must be remanded, it is not necessary to consider the plea of prescription. 1 1 1 •

, . » . _ It is, therefore, ordered, adjudged'and decreed, that the judgment of the Parish Court be reversed, and the verdict set aside; and it is further ordered, that the case be remanded for a new trial, with directions to the judge not to reject Pierre Escalón, as a witness, on the ground stated in the bill of exceptions, and that the appellee pay the costs of the appeal.