Millaudon v. Lesseps

Labatjve, J. This suit is based upon the folio-wing- written promise of the defendant : “ Je m’engage par ce present éerit á régler la reclamation de Mr. Laurent Millaudon, montant a la somme de $3,996 50, a la date du 7 Décem-bro, 1852, pour la reclamation du syndicat provisoire, en billets endorsés par mon fils Auguste, lesquels billets seront faits a un, deux et trois ans, avec les intérets de 7 pour cent.” The defendant, in his answer, admitted the execution of this obligation, and alleged that the plaintiff was indebted to him in the sum of $7,310 12, composed of $2,605, the half of attorney’s fees paid by Mm and Ms syndic, for the defence of suits in which plaintiff was jointly interested with him, and $4,695 12, principal and interest of a note owned by defendant, and which was paid by the makers to plaintiff for defendant, all of which he plead in compensation. The plaintiff pleaded prescription against defendant’s demands in compensation. The district court sustained the plea of prescription, and gave judgment against the defendant, in favor of plaintiff, for the amount claimed, and the defendant took this appeal. The defendant failed to establish the first item of his demand, being- for one-half of attorney’s fees. The only things remaining to be examined are relating to the note, said to have been collected by plaintiff for defendant, and the plea of prescription filed by plaintiff. R G. Bebreuil, sworn, says : In looking over the books,- he finds that the note of the tobacco warehouse, in favor of Alexander Lesseps, was paid to Mr. Millaudon; the entry showing said payment reads as follows, in the books of F. de Lizardi & Cfo., on credit side of Millaudon’s account: [249] September 30, 1843. By M. de Lizardi & Co., in liquidation lor note of the tobacco warehouse company, in favor of Alex. Lesseps, protested ; but paid by Mr. Millaudon, as per judgment obtained.§3,395 00 At 8 per cent, per annum, add interest eighteen days, to 30th September, 1842.,.•. 10 18 §3,405 18 This witness further says, that he recollects the transaction weE; knows that the tobacco warehouse owed Lesseps for bricks furnished by him, and for which they gave him their note, which note was given by Lesseps to MiEaudon for coEection ; and, from the entries in the books in court, he supposes it is the same note, and that it was paid. * * * Defendant introduced in evidence the entry in Millaudon’s account current books, called for and produced by him, which reads as foEows, to wit: Dr. Cr. F. de Lizardi & Co. in account current, with interest to 30th September, 1842, with L. MiEaudon. 1842. Sept. 12th. Note of tobacco warehouse of A. Lesseps, charged by agreement to this account.§3; 395 00 Interest. 10 18 Offered also the foEowing entry, same book, page 440 : October 30, ’43. Mr. L. MiEaudon, to F. de Lizardi & Co., Cr. 1842. Sept. 30. To this sum charged in his account current of 30th Sept. 1842, as amount of note of tobacco warehouse company, to Alexander Lesseps, with interest.§3,395 00 Should be as foEows : Note due 4th June, 1840.§2,600 00 Interest from 4th June, 1840, to 12th Sept., 1842, 830 days, at 5 per cent. 299 71 -§2,899 71 Due F. de Lizardi & Co., cash, 12th Sept., 1843. §495 29 New Orleans, 9th December, 1843. (Signed) F. de Lizabdi & Co., in liquidation. The above entry shows that it is an account rendered by F. de Lizardi & Co. to L. Millaudon, and the latter entered it in his own books. Defendant also offered the entry in the journal of F. de Lizardi & Co., in liquidation, at page 120 : Dec. ’43. Laurent MiEaudon, on account No. 2, to M. de Lizardi & Co., in account for this sum charged in his account current, 30th September, 1842, journal, p. 101, note of A. Lesseps.§3,395 00 Which should be note due 2d June, 1840, tobacco warehouse company to A. Lesseps.§2,600 00 Which should be interest from 4th June, 1840, to 12th Sept. 1842, 820 days, 8 per cent. §299 71.... §2,899 71 §495 29 From the testimony of Déb'reuil, and the entries in the books of plaintiff and of de Lizardi & Co., we are satisfied that the note due by the to250 baeco warehouse company was held by defendant and eolleoted by plaintiff, by being placed to Ms credit in Ms account current with de Lizardi 6 Oo. It appears that, in an account current of 30th September, 1842» the plaintiff had been credited for said note, with ¡fi!3,395 instead of $2,600- and interest to that date; the error having- been discovered, de Lizardi & Oo. made an entry in their books showing and correcting this error, and charging Millaudon with the difference as a balance due, cash, 12th September, 1843, with $495 29. This entry or amount is dated New Orleans, 9th December, 1843, and signed by F. de Lizardi & Oo. in liquidation. This rectifying amount was entered in Millaudon’s books as of October 30, 1843; by this entry it is clear that the plaintiff acknowledged the error, and that he owed said balance to de Lizardi & Oo., and also that he had received and had in his hands on that day, for defendant, as proceeds of the note due by the tobacco warehouse company, in principal and interest, the sum of $2,899 71; and that he had not accounted to-the defendant for his agency. O. O. Art. 2974; 10 B. 481. The plaintiff, having taken charge of the collection of the note in question, became a special agent of defendant in regard to it, and in correcting the error by this entry in his books he acted as agent; and perhaps his agency ceased here, say on the 30th October, 1843, according to the entry in his books; and prescription may have commenced to run from that day; the action that defendant had against plaintiff was a personal action which could be prescribed only by ten years. C. C. Art. 3508; Cooper v. Harrison, 12 A. 631; Troplong, Prescription, vol. 2, Art. 490. According to the written obligation sued upon, the defendant became indebted to the plaintiff, on the 7th December, 1852, for $3,996 50, with 7 per cent, interest per annum from that date. The plea in compensation has a retroactive effect to the time when the plaintiff and defendant became indebted to each other. C. O. Art. 2203. Now, sup|)ose that prescription commenced running in favor of plaintiff from the 30th October, 1843, the ten years prescription was not acquired on the 7th December, 1852. The plea ;of prescription must be overruled, and the compensation allowed. O. O. Art. 2204; 10 E. 196. The proceeds of the note were received by the plaintiff by being placed to Ms individual credit in his current account with de Lizardi & Oo.; having employed them to his own use, he owes legal interest on the same, say from the 30th October, 1843, to the 7th December, 1852. O. O. Art. 2984. The plaintiff was indebted to the defendant, on the 7th December, 1852, in principal and interest, in the sum of $4,219 40, exceeding, by $222 90, the amount claimed in the petition. The defendant has not prayed judgment for any excess or balance. It is therefore ordered, adjudged and decreed that the judgment of the District court be annulled and reversed; that the plea of prescription to the demand in compensation be rejected; that the respective claims of the parties be declared compensated and 'extinguished to the sum of $3,996 50; that the defendant pay costs incurred prior to the 16th January, 1860, and all subsequent costs, and those of this appeal to be paid by plaintiff and appellee. O. P. Arts. 370, 371.