Taylor, Gardiner & Co. v. Wooten

Martin, J. delivered the opinion of the court. The defendant is appellant from a judgment, in which the plaintiffs recovered “ $191 22, the amount of a draft acccepted 'and paid by them ; also $9 56, being 24 per cent, for accepting, and 21 per cent, for advancing on said draft; and the further sum of $87 50, being 24 per cent, commission on $3500, the value of 100 bales of cotton.” The defendant having occasion for the plaintiffs’ acceptance •of a draft of his for a small amount, entered into the following ■agreement with them: “ New Orleans, February 11, 1840. “ In consequence of Taylor, Gardiner & Co. granting me an acceptance this day for $191 22, at 90 days date, in favor •of A. Cardozo, I hereby bind myself to ship to them my next crop of cotton, say 100 bales, and in default thereof, to pay them the commissions, that would accrue on said sales,” “ R. G. Wooten.” The plaintiffs in their petition claim all the items which were allowed in the judgment; and the further sum of $21 52 for interest. It appears to us the court erred. The plaintiffs were entitled to the amount of the draft, and a commission of 21 per cent, thereon, for their acceptance. The commission. of 21 * . per cent, for advancing was improperly allowed. There was no consideration for the allowance of a commission on the crop of cotton, which the defendant engaged to send to the plaintiffs for sale; as no cotton of the defendant was sold under the agreement. The promise to send them cotton, or in default to allow them their Commissions, had no other consideration than the acceptance of the draft by them; and for this they have [520] charged, and the judgment allows them, a commission of 2é per cent. The promise was therefore nudum pactum. In the case of Harrod et al. vs. Constance, 5 Martin, 575, we held, that neither law or custom allows the charge of a commission on a Crop not sold by the merchant, hut which he expected would be sent to him in consequence of advances made to the planter. A promise by defendant to send plaintiffs his crop, or in default, to allow them a commission on its amount, having no other consideration than the acceptance of a ’ draft, for which a commission is already charged and allowed, is a nudum pac-tum, and will not be enforced. It is contended, that in the present case the commission is charged in consequence of the defendant’s promise to pay it» if he did not send his cotton to the plaintiffs for sale ; and as a compensation for a breach of his promise to send it. We have already said, that the promise being without consideration, can* not support an action. As to the charge of interest in the account, the lower court has disallowed it, and the plaintiffs have not prayed the amendment of the judgment in this respect. See the case of Segond vs. Thomas, 10 La. Reports, 295. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and procesding to give such judgment as in our opinion should have been rendered in the court below: It is ordered, adjudged and decreed, that the plaintiffs do recover from the defendant the sum of $191 22, with 5 per cent, interest from the 6th of April, 1841, (La. Code, art. 1932,) until paid ; and $4 78 commissions for accepting draft; the plaintiffs and appellees paying the costs of the appeal.