Dean v. Martin

Ludering, C. J. Tlio plaintiffs are holders and owners of a draft or order drawn by Brummel, dated May 7, 1866, directing the defendants to pay plaintiffs or order the proceeds of twenty bales of cotton then held by defendants for account of Brummel. When this order was presented for payment the defendants wrote the following acknowledgment on the back of the order: “We have a hill of sale of twenty hales made to A. T. Hawthorn, for the benefit of A. O. Brummel, providing that the net proceeds of twenty hales average cotton ho paid to the said A. O. Brummel when sold, less sixty dollars. New Orleans, May 7, 1866.” The twenty hales of cotton were sold by the defendants, and realized the net sum of §1080. The defendants refused to pay plaintiffs, on the ground that they had been ordered by Swanson not to pay the same. In their answer they admit they hold the proceeds of the sale of the cotton, but they aver that, inasmuch as Swanson and others claim them, they call upon all the other parties to interplead, and they pray that the court may say to whom the money shall be paid. Swanson alone filed an intervention. He avers that he was the owner of 141 hales of cotton; that the cotton was seized by A. O. Brummel, who represented himself as an agent of the Treasury Department of the United States; that Brummel had a file of soldiers with him, and that he was prevented from shipping his cotton until he entered into the following agreement: “ Bowis County, Texas, March 23, 1866. Know all men by these presents that I have this day bargained and sold to A. T. Hawthorn twenty hales of cotton, to he averaged out of one hundred and forty-one bales shipped on steamer Carrie Poole. The net proceeds of said twenty bales average to be paid by said Hawthorn to A. O. Brummel, provided there is no seizure or detention of said one hundred and forty-one hales cotton by the Government of the United States or its agents, or, in the event of seizure or detention as aforesaid, the proceeds of said twenty bales to be paid to said Brummel, provided said one hundred and forty-one bales are released and permitted to be sold without any additional expense. (Signed) W. C. SWANSON.” [104] And the cotton was released from seizure and shipped to the defendants, A. T. Hawthorn being at the time one of the firm of which-defendants are the successors. Some time after this one Oliver asked Swanson if the sale of the twenty; bales of cotton to Brummel would be all right. “He said he guessed it would; that it was a swindling transaction all round, and that he thought he had got off cheap enough anyhow. This was before-I bought of Brummel. I got Brummel to give the order to Dean,. Adams & Gaff.” He further says: “They advanced me $1200 on the-order.” W© think Swanson is estopped from, denying the sal© to Brummel,. for by his declarations to Oliver he induced innocent parties to part-with their money for the cotton under the impression that it belonged to Brummel. We are also of opinion that the contract between Swanson and Brummel was an executed contract, and courts of justice will not give their aid to afford relief from the consequences of the immoral contract entered into by' the parties. It is therefore ordered and adjudged that the judgment of the district court be annulled, and that there be judgment in favor of the plaintiff and against the defendants for the sum of $1080, with five per cent, interest thereon from the first day of April, 1868, till paid, and for costs of both courts against the defendants and intervenor. Rehearing refused.