Delpeuch v. Dufart

Martin, J., delivered the opinion of the court. The plaintiff being charged with the settlement of the affairs of the late firm of Delpeuch & Co., consisting of himself and D. Castelman, as the sole and only members thereof, alleges, that said firm consigned to the defendant, residing at the time in Tampico, an adventure or parcel of merchandise, belonging partly ( to himself and partly to Canez, for an aggregate sum of forty thousand five hundred dollars, in which fifteen thousand nine hundred and seventy-one dollars and fourteen cents was included, being the amount of merchandise consigned by the said firm of Delpeuch & Co.; that the defendant has accounted for only the sum of four thousand and seventy-eight' dollars, which leaves a balance of eleven thousand and ninety-three dollars and ninety-seven cents, and interest, still unpaid and unaccounted for, for which the plaintiff has instituted this suit. The answer of the defendant denies his accountability, and avers that he has never received payment from his vendees. . The District Court gave judgment of non-suit, and the plaintiff appealed. The counsel for the plaintiff contends, that the judgment ought to be reversed, on the following grounds: 1. The balance claimed is admitted by the district judge, to have been established. 2. The defendant is accountable for certain goods and "credits, which he received from his vendees, as he took them at his own risk; and the matter has been settled as it appears by a judgment in which he has acquiesced. 3. These goods and credits were received on the 31st of March, 1831, and the last balance of account between the defendant and his vendees, was struck in February, 1833 ; that it also appears the merchandise received was of the value of seventeen thousand five hundred and sixteen dollars and fifty cents, and the credits only amounted to three thousand four hundred and thirty-eight dollars. From this statement it results, that admitting all the goods received in February, 1833, had been re-sold in the defendant’s hands, [537] he retains the sum of two thousand eight hundred and sixty-eight dollars, to cover such a deficiency as may result from the credits, and admitting further, that he cannot be accountable for those credits until he collects the amount of them; he is certainly accountable for the value of the merchandise, until he shows it has been lost without any fault of his. 4. The District Court should have compelled the defendant to account. This court is of opinion, the District Court erred in non-suiting the plaintiff, on the ground that he did not show the defendant had received any money by the sale of the merchandise, nor collected any of the debts. It was the duty of the defendant to establish, that this was the case without his fault. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the case be remanded for a new trial; the appellee paying costs in this court.