McCarty v. Straus

Ludemng, C. J. The plaintiff sues the defendants - in solido for five thousand dollars in specie, the value of twenty thousand pounds of lint cotton. The claim is based on the following instrument: “ Shreveport, La., May 29, 1865. “ l have this day sold, and by these- presents do bargain and sell on my own account and for Baer & Straus, forty bales- of good middling cotton, averaging live hundred pounds per bale (twenty thousand pounds iu all), to bo delivered immediately if called for, to C. McCarty, of this city. Also I sell and transfer on the same account and 'to the said McCarty, forty-seven bales of cotton, marked J. S., now at Mon-terey, in Texas, originally stored with A. M. Hull & Co., of Shreveport, and removed to Monterey. “ Now, it is understood and agreed that if I, the said Jacob Straus, or Baer & Straus, shall deliver to the said McCarty twenty thousand pounds of good middling cotton in good shipping order in Shreveport, or shall pay to him in specie the value of said twenty thousand pounds of cotton, estimating the price according to current rates when the trade may be opened regularly with-New Orleans; then the sale of the cotton named (if money is- paid) shall be: annulled, and the whole eighty-seven bales of cotton shall return and. belong to Baer & Straus ; otherwise the said McCarty can proceed to- obtain out of the whole amount the value, in the Shreveport market, of twenty thousand pounds of good middling cotton as- aforesaid. “ BAER & STRAUS, “per Jacob- Straus.” ’ [593] And the- plaintiff prayed for and -obtained a writ of sequestration against certain cotton in tlié possession of Baer & Straus, on the ground that lie had a privilege on it. The defendants filed a motion to set aside the sequestration, on the ground that .the plaintiff had no privilege on the cotton sequestered. And by consent the motion was tried with the'merits." 1 - • ■' The defendants, Baer &" Straus, filed an answer in which, after a general denial, they specially deny that ’the' document' sited - upon was signed by them or either'of them, of by'any one authoi'ize'd to represent them. ■ ■ ■ y ■ ■ .= The defendant Jacob Straus filed no answer, and no default was taken as to him. There was judgment in favor of the plaintiff for four thousand dollars in specie against all the defendants in soltclo',1 and- maintaining the writ of sequestration issued against the cotton. •- -s . .- All the defendants have appealed. Baer & Straus expressly denied that the instrument sued on was signed by them, or-by'anyone who had authority''to bind them. It was tiie plain duty of the plaintiff to’ 'prove fliat Jacob Straus was authorized by them to bind them, or to prove that they- had ratified Ids' acts. The evidence in this record fails to satisfy us that Jacob Straus was authorized to bind Baer '& Straus, or that Baer & Straus ever ratified his acts. The acts of a party from which the ratification of a contract is sought to be deduced, must evince clearly and unequivocally Ms intention to ratify. 17 La. 286, Copeland v. Mickie et al. There is no evidence to show that Baer & Straus, or either of them, ever did or said anything whereby they manifésted an intention to bind-themselves. Oii the contrary, each denied his liability.: Besides, the only evidence which tends to prové a ratification is-the-testimony of Wright. The contract attempted tó be established exceeds- five hundred dollars. C.'C. 2257. " ' ' ' " ' ; The judgment against M. Baer and Joseph Straus is erroneous. We have already not! ceil that no default was taken against Jacob Straus, and that no answer was filed by him.. No issue having been joined as to him, the trial was premature. The views wo have expressed make it unnecessary to pass upon the bills of exceptions taken by the defendants." ■ • It is therefore ordered, adjudged’ and decreed that the judgment of the District Court be avoided and.reversed; that there be judgment in favor of Baer &'Straus against the plaintiff, rejecting his demand, and that the writ of sequestration be dissolved. ■ • ' - ’■ It is further ordered' that This case bé remanded to the court a qua, to be proceeded in according to law against Jacob Straus ; and -that the plaintiff .pay the costs óf the ’sequestration and of'this1 appeal. - • '