Nott & Co. v. Papet

Martin, J., delivered the opinion of the court. This is an action against A. Foucher as maker, and F. Saulet as endorser, of a promissory note. The defendants severed in their answers, but both expressly averred that they did not sign and endorse their names to the note sued on, and that their signatures are counterfeited or forged. On the filing of these answers, the plaintiffs presented a supplemental petition, alleging that they purchased and held said note as the vendees of one Charles Papet, for a valuable consideration ; and as the defendants, by their answers, deny their signatures, and allege them to be forgeries, they pray that Papet be made a party defendant, and in case the defendants are not liable, that they have judgment against him for the amount of said note. Papet pleaded a general denial, and averred that if he sold and delivered the note sued on to the plaintiffs, it was as an exchange broker, and that he was a duly licensed broker, [309] and acted in that capacity alone. He also avers, that he never knew of any note he may have passed or negotiated, as broker, was ever false or forged. Lastly, he pleads the want of amicable demand, and usury. Brokers are not licensed in this state, and as such are unknown to our law. A party to a contract who denies that he acted as principal must show that he made this known at the time of the contract, or allege and prove his agency at the trial. There was a verdict and judgment for the defendants, and the plaintiffs appealed. The jury, in our opinion, correctly found for the maker and endorser of the note, as the evidence satisfied the jury that their signatures were forged, and we are unable to say that they erred. The case is, therefore, to be considered with regard to Papet alone. Our attention is drawn to a bill of exceptions taken to the charge of the court.. The jury were instructed, “that if they considered it proved that this defendant sold the note, he must show for whom he acted as broker; which may be shown when called on, although not done at the time of the sale. That the defendant being proved to be a licensed broker, is presumed, in making the sale of the note, to have acted as such, although he named no principal, for whom he acted at the time. But, when called on in a case like the present, it is incumbent on him to disclose his principal; and if he does not, he will be presumed, in law, to be the owner.” “If the jury, however, believe that the defendant passed the note as a mere agent, or broker, although he was unable to prove his agency as to any particular individual, and was guilty of no fraud, the jury ought to find in his favor.” If the plaintiffs and appellants have a right to complain of any part of this charge, it must be the last part of it. We have not inquired into its correctness, because it has not appeared to us to have any bearing on the case. We are ignorant of any law of this state, authorizing, or relating to licensed brokers. They are not known to us. Parties to a contract, who deny that they acted as principals, must show that they made this known at the time of the contract, or allege and prove it at the trial. The term agent is a relative one; and it is of its essence that it have its correlative, to wit: a principal. Brokers in this state buy , , . 1 , . . and sell paper on their own account, and on that of others, [310] When they sell on their own account, they must certainly be responsible, as all other individuals. This responsibility would vanish, if they could escape from it by alleging, without proving it, that they acted for another. If the responr ° 7 J ... Ubility does not rest on the agent, it must lie on the pnncipal- and he must be made known, otherwise, the responsiJ ’ buity would be removed from the agent, without being fixed on any one else. Papet, not having disclosed his principal ¡n this case, at the time of the sale, nor shown who he was 7 7 , at the trial, must be considered as having sold the note on bis own account, and be held responsible for its genuineness, yye ¿0 not mean, however, to say, that at the time of the sale, the broker must name the owner of the paper, but it is his duty to make known to the purchaser that he does not ge|[ his OWn acCOUDt. Brokers in this state buy and sell paper on their own account, and that of others ; and must be responsible as all other individuals. broker failed6to disclosehispnnof sale of a pro™iow°wlohe was at the trial, he was considered as having sold own account,and fordit7 genuineness. There is no usury in the sale of a note, although more than the highest rate of conventional interest was deducted, if the vendor does not endorse it, or is not a party to it. It is of the essence of the contract of loan, that he who receives money is bound to return it, and to which alone usury attaches. _ There was no usury in this transaction, although more than the highest rate of conventional interest was deducted *n lhe sale of the note; for the vendor, not having endorsed jt would nbt have been bound to repay what he received, if ... . . T . . . - . it had been genuine, it is of the essence of the contract °f l°arb that he who receives the money, should incur the obligation to return it. The contract which intervened , . . , . , , between the parties in this case, was one or sale; so that the plea of usury is unavailable. jt ■ therefore, ordered, adjudged and decreed, that the judgment of the District Court, so far as it relates to the defendants, Foucher and Saulet, be affirmed, with costs. It *s further ordered, adjudged and decreed, that the judgment, as far as it relates to the defendant, Papet, be annulled and reversed; and t.hat the plaintiffs recover from the heir of Papet, made a party to this appeal, the sum of four thousand dollars, with three dollars costs of protest; no amicable demand being necessary in a call in warranty; and it is ordered that the defendant pay costs in both courts.