Breen v. Schmidt

The judgment of the court was pronounced by Eustis, C. J. On the 9th February, 1850, the defendant caused to be sold at public auction, two lots of ground situated in the city of Lafayette, which were purchased by the plaintiff for fourteen hundred and thirty dollars, payable one-fourth cash and the balance in three equal installments, at six, twelve and eighteen months. In the auctioneer’s advertisement it was stated that the deeds of sale were to be passed before Joseph JR. Beard, then a notary public in New New Orleans. It appears that on the 27th 'February, 1850, the purchaser, Breen, deposited in the hands of one of the notary’s clerks, the sum of three hundred and fifty-seven dollars and fifty cents, being the amount of the cash portion of the price of the property, and paid two dollars and fifty cents on account of fees. When this money was deposited no receipt was required ; but afterwards the clerk gave the plaintiff the following acknowledgment: “ New Orleans, March 15, 1845. “ I have received from Mr. John Breen three hundred and fifty-seven dollars and fifty cents, for cash payment on property bought from C. Schmidt, and two dollars and fifty cents on account of fees, on the 27th Febraary last. “For J. R. Beard, Notary Public, W. G. Lathaiu.” The true date is, no doubt, 1850 instead of 1845. The clerk, who was examined as a witness, testifies that “the money was not handed to Mr. Beard personally, but was received in his office; it was used by .Mr. Beard’s orders.” And in his cross-examination he says, “witness received the money; Mr. Beard was not in the office at the time witness [18] received the money; the money was used to pay off other liabilities of Mr. Beard; he cannot exactly say how long after it was received, but shortly after. It was not deposited in bank. All the money received was put in a box, and used as wanted.” The question which the case presents is, at whose risk was the money after it had been deposited with the notary’s clerk 1 The Judge of the Second District Court of New Orleans considered the money exclusively at the risk of the defendant, and, in the present suit, decreed him to be liable to pay the plaintiff the whole price, and the sum of sixty dollars damages and costs. From this judgment the defendant has appealed. We concur with the counsel in the opinion that the delivery of the money to the notary’s clerk did not constitute a payment. It could only constitute a deposit; and until the plaintiff was regularly put in default, it seems to us that the deposit was exclusively at the risk of the depositor. C. P. 407, etseq. Code 2163, et seq. The notary’s clerk to which the district judge, it appears, gave full credit, establishes a state of facts which take the case out of the general rule. We do not find his statements contradicted by the witnesses for the defendant. Latham swears that he went to the plaintiff’s store to ge,t his title, and met the defendant there, and found him conversing with the plaintiff in relation to change in the terms of the sale, and in the course of the conversation Breen. said to the defendant, “ to whom shall 1 pay this money, to you or who 1” Witness observed that it was customary to pay it in the office. Schmidt said it made no difference. .After the money was paid in the office, Schmidt, the defendant, asked the witness to let him have part of it as he wanted to pay a note due on that day. Breen, at the time he deposited the money, signed the act prepared by the notary, and delivered his several notes according to the conditions of the sale. The only cause assigned for the non-completion of the act was the existence of a mortgage on the lots, which the defendant had neglected to remove. The district judge came to the conclusion, that the defendant himself consented to consider the delivery of the money in the notary’s office as a payment. The evidence is not of that character which would authorize this court to reverse this decision on a question of fact. The judgment of the district court is therefore affirmed, with costs.