Livaudais v. Denis

Tho judgment of the court (King, J. absent,) was pronounced by Sdidedd, J. St.-Avid was, during several years, the agent at New Orleans of the plaintiff, who was living abroad. This suit was brought to recover an alleged balance due from the agent, and, by the admissions of the parties at the' trial, the contest was narrowed down to certain specific items. St. Avid had received, in 1842, from the former agent of plaintiff, various assets belonging to the plaintiff, among which were a note of Charpeniier for $1,050 91, maturing a few days after its receipt by St. Avid, and also a protested note of Roussel 8f Vienne, on which it was stated in the receipt that two dividends had been paid. Charpeniier, á witness for the plaintiff, to whose testimony no exception was taken, deposed that he had paid the amount of the note-to St. Avid in two payments, one of #500 and the other of #550 91 ; and that he Was unable to produce the note, having burned it after taking it up. It appears that St. Avid has given credit in account for the first payment, but not for the second; and it is objected that the-testimony of one witness is not sufficient, under article 2257, to charge him with a liability for a sum exceeding #500. If the article can be deemed applicable, the objection is answered by the consideration that the claim does not rest upon the testimony of a single witness, but is supported by corroborating circumstances. St. Avid had given a written acknowledgment of the receipt of this note for collection, as plaintiff’s agent. If Charpeniier had not paid it, it would have been, in St. Avid’s possession, or-in [301] that'-' of- his executor after his death, and should have been produced. The agent’s receipt, and the non-production of the noté, are strongly corroborative of the truth of Charpentier’’s testimony. It appears that Roussel was an insolvent, and his estate .was administered by a Syndic, who had paid the plaintiff’s former agent two dividends. A dividend’ was declared in-1843,-being after the commencement of St. Avid’s agéíits'y'.í An agent of one of the creditors of Roussel states, that he collected the dividend for his principal, in October, 1843. The district judge decided that the defendant could not be held liable for the amount of the dividend, because St. Avid had not received it, and there was no proof that he had knowledge of its existence. One of two propositions is clear. Either St-Avid- knew the declaration of the dividend and riégiected to collect it; or else he neglected to make due enquiry from time to time, and his ignorance must be attributed to his own fault. Pie knew that the insolvent estate was under administration, and that dividends hkd been already-made; and it was his duty to use reasonable diligence, from time to time, by calling upon the syndic. If this had been done, it is fair to suppose he would’ have, been equally successful with the other agent. It has been repeatedly held that, wHen obligation's are placed in^he hands of an' agent for collection-, it is not-sufficient for him, after a lapse of time, to offer to return them, without showingtkat1 he exercised ordinary care and industry to get'the money. Police Jury v. Bullitt, 8 Mart. N. S. 328. Collins v. Andrews, 6 Mart. N. S. 195. '■ The amount of the obligation entrusted for collection is, prima fade, the measure of damages'sustained by the principal. ' • • •' • It is, therefore, decreed that the judgment be amended by increasing the capital sum adjudged, so that the same be fixed at the sum of ¡$21317 77, instead of’ thd sum of $2,-057 38 ; and that, so amended, the judgment be affirmed; the ■ costs of appeal to be paid by the defendant. 1 >