Wise v. Guthrie

VooRniES, J. The plaintiff claims to be the owner of twenty-four bales of cotton, seized under a writ of fieri facias, issued on a judgment in favor of the defendant against James N. Gole, as the property of the latter. He alleges that the cotton was sold and delivered to him, and was in the possession of his agent, George B. Snodgrass, when it was levied upon him. The plaintiff pretends to derive his title from James Gole, the seized debtor. On the trial below, he introduced in evidence the following instrument, viz: “We, the undersigned, promise and oblige ourselves to deliver over unto Darid Wise the present crop of cotton we are about to make, in consideration of all necessaries furnished and to be furnished, to carry on the business of the place, by said D. Wise. Joel Chandler, “Waterproof, February 23d, 1853. Jas. N. Cole.” [92] Tho interest of Joel Chandler in the crop appears to have been set apart to him and conveyed to the plaintiff. The plaintiff next offered his account in evidence for various goods and merchandize sold and delivered to James If. Gole, the items of which, proved by the testimony of his clerk, amounted to the sum of $588 28, exclusive of $67 80, amount of note for balance due in 1852; and also introduced in evidence an order drawn by James N. Gole on him in favor of Reuben Ohadioick, dated the 10th of January, 1854, for the sum of $311 75, purporting to be for the price of three work-horses purchased of the latter. The cotton, it is shown, was hauled to the gin-house of George R. Snodgrass, where it was ginned, baled and marked J. C., and where it was seized as the property of James IF. Gole. Dixon, the overseer of Snodgrass, testifies that he marked the cotton in dispute with the letters J. C. without any instructions from any person; that immediately on discovering it, Gole told him that it was wrong, as the cotton belonged to Mr. Wise. Chandler testifies that Gole sold the whole of the crop to Wise; that “ Gole was very much embarrassed, and could not have gotten supplies and other necessaries without making tho written agreement he did with Mr. Wise." James If. Gole, also examined as a witness by the plaintiff, testified that he had sold his crop of cotton to Mr. Wise early in 1853, on condition that Mr. Wise would afford him supplies for carrying on the crop, and take up certain debts for him. That tho cotton was taken by him to the gin of Mr. Snodgrass at the instance of Mr. Wise. It is not shown whether the cotton was sold'to the plaintiff, as pretended, in a lump, by weight, or by the bale; neither is it shown what was the specific price stipulated to be paid by the plaintiff. In a sale, it is essential that the price should be certain, that is to say, fixed and determined between the parties, either by themselves or by the intervention of a third person, otherwise, in the words of the law, there exists no sale. C. C., 2439. Tho defendant claims damages from the plaintiff and his sureties on the bond resulting from the injunction. We are of opinion that this is not a case in which damages should be allowed. See the case Borie v. Borie, 5 L. R., 89. But tho judgment injoined bearing interest, eight per cent, must be allowed, to be calculated from the date of the injunction to its dissolution. Barrow v. Bank of Louisiana, 2 Ann., 456. It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed; and it is further decreed, that the injunction in this case be dissolved, and that the Sheriff proceed to make the sale of the property seized according to law; it is further adjudged and decreed, that the defendant, Guthrie, recover of plaintiff in injunction, and his sureties in solido, interest at the rate of eight per cent, per annum upon the amount of the judgment enjoined, to be calculated from the date of said injunction to the present date; it is further ordered, that the plaintiff and appellee pay costs in both courts.