Packard v. Ober, Atwater & Co.

Wyly, J. In February, 1868, Ober, Atwater & Co., sued the firm of Packard & Co.,' composed of John Q. Packard and James B. Packard, in the Fifth District court, parish of Orleans, for $17,896 66, for balance of account due them as factors. In answer to this suit the plaintiff John Q. Packard, pleaded a general denial; alleged that he and J. B. Packard were ordinary partners engaged in cultivating plantations in the.parishes oi Concordia and Tensas; denied that they were in any sense commercial partners, and alleged “That on the eighteenth of May, 1867, this defendant and the said J. B. Packard as ordinary co-partners, were jointly indebted to the plaintiffs for advances of money and supplies to carry on the business of planting, amounting to the sum of $18,303 49, and no more; that, on or about the twenty-fifth of May, 1867, the said indebtedness was fully paid and extinguished in the following manner, to wit: The plaintiffs purchased of defendants the “Live Oak” plantation, situated in the parish of Concordia, and on the last named day, defendants duly conveyed said plantation to the plaintiffs by public act passed before the recorder of Concordia parish and duly accepted by plaintiffs for and in consideration of the sum of $10,000, which sum was to be applied in part payment of said balance $18,303 49, and the balance, to wit: the sum of $8303 49, was settled and paid by the individual note of said J. B. Packard, made and delivered to the said Ober, Atwater & Co., on or about the twenty-fifth of May, 1867, which note has since been fully paid to the plaintiffs by the said J. B. Packard.” * * * He further alleged that since said da'e the said Ober, Atwater & Co., have made other advances of supplies and money for planting purposes, the precise amount of which he is unable to state, but for a less amount than is claimed by plaintiffs, in their petition, and that all the advances so made have been fully paid by large sums received by them from California for him (the exact amount he is not able to state because they have not rendered him an account) and by the receipt of eighty-six bales of cotton from him, the product of the crop of 1367, the proceeds of the sale thereof still re425 retaining in the hands oí said Ober, Atwater & Co., and unaccounted for, but this defendant is informed and believes they amount to the sum of $6500, and also by the receipt oí the proceeds of 3000 sacks of seed from the plantation in the parish of Tensas, and that when the defendants are duly and properly credited with the money received from Calfornia and the proceeds of said consignments, he alleges that the demands of the plaintiffs against him will be found to be fully canceled and paid. These are the averments of the answer which was filed on the tenth of March, 1868. On the twenty-fourth of September, 1868, Ober, At-water & Co., filed a supplemental petition, showing that since filing the origiual petition, the indebtedness of the defendants, Packard & Co., to them had been reduced to $16,570 45, and they prayed for and obtained a writ of attachment on the ground that, John Q. Packard was about leaving the State permanently. Under this writ the sheriff seized all the products and movables of John Q. Packard ou the Yiamede plantation in the parish of Tensas. On the twenty-seventh of November, 1868, John Q. Packard com-' promised this suit with Ober, Atwater & Co., fixing the amount of his indebtedness to them at $12,000 by mutual consent; “ and all demands of the one against the other are hereby merged and included in said sum of $ 12,000.” It was further agreed that all the property attached should be delivered to Ober, Atwater & Co., at the appraised value thereof at thetime the attachment was levied, except 1000 bushels of corn reserved to pay the rent due by Packard for the Viamede plantation; the cotton gathered and to be gathered, was to be shipped to Ober, Atwater & Co., and sold, and the broom corn was likewise to be sent to market and sold. Out of the estimated value of the property and the proceeds of the crops to be shipped to market and sold, Ober, Atwater & Co., were to pay certain privilege claims and the wages and rations of the laborers and overseer on said plantation — the expense of saving the crop and the costs of suit. The costs of attachment and of keeping the property while in the custody of the sheriff and the fee ot Packard’s attorney were also to be paid by Ober, Atwater & Co. The residue of the property and proceeds, after paying the specified claims, was tobe applied to the payment of the $12,000 due by Packard to Ober, Atwater & Co. If any surplus remained it was to be paid over to Packard ; and if there was a deficit, Packard authorized his attorney to confess judgment for the amount thereof, with eight percent, interest and with a stay of execution for twelve months. In February, 1869, the plaintiff John Q. Packard, brought this suit to annul the compromise of the twenty-seventh of November, 1868, and [426] to recover from the defendants Ober, Atwater & Co., the sum $25,000, the value of his property on the Viamede plantation, obtained by them in virtue of said compromise. He also sued Ober, Atwater & Co., and the sureties on the attachment bond for $25,000 damages for illegally attaching his said property. These two suits are consolidated, and the judgments adverse to the defendants rendered therein by the court a qua, are now submitted for revision to this court. We will first examine the suit to annul the compromise and to recover the value of the property received by Ober, Atwater & Co., in virtue thereof. Tlie plaintiff alleges that said settlement or compromise “ was made in error and under a mistake of facts on his part — and through fraudulent practices on the part of the defendants in this, that believing the defendants to be honest men, and not being familiar with matters of account, he believed the sum sued for by them to be the true sum for which he was liable, less such payments as had been made, but since said settlement he has learned that the defendants have overcharged him by way of usurious interest, illegal and exorbitant commissions, and by errors in footings and double entries, in the full amount of six thousand dollars.” He also alleges that he was entitled to certain credits besides those appearing in the account of Ober, Atwater & Co. *' And petitioner further says, that before said settlement he was led to believe, and believes, through statements made by defendants and testimony which petitioner then believed, that the said deed made by him of the Live Oak plantation to defendant, Albert Gr. Ober, for the benefit of said firm of Ober, Atwater & Co., had not been accepted by John Janney, the duly authorized agent of the defendants, a fact which the petitioner could not know, for the reason that the acceptance, if made at all, was made in his absence, and laboring under said belief he made said settlement without taking into account the payment of the ten thousand dollars to be credited for the conveyance of said Live Oak plantation; and since said settlement petitioner has learned that said deed was duly accepted by the said agent, John Janney, and the same is binding upon the defendant, and for the conveyance of said Live Oak plantation he should be credited on the account exhibited against him in said suit in the full sum of ten thousand dollars. That if all said errors are corrected in said account and all his payments therein ■are duly credited he believes, and therefore avers the fact to be, that at the time of said settlement he was not and is not now indebted to the defendants to any extent whatever.” That in consequence of said settlement, “ made in error and induced through the deception and the fraudulent practices of the defendants,” they have obtained his property, worth $25,000. [427] The prayer of the petition is that said settlement be, declared a nullity and set aside, and that petitioner have judgment against the defendants for said sum. The allegation that the defendants charged usurious interest and commissions, is no ground to annul the compromise; because the accounts containing them had been rendered to him before the compromise, and he did not act in error on that account. The errors complained of in the footings and double entry, and also the allegation that the defendant is entitled to certain credits besides those appearing in the account of Ober, Atwater & Co., are not established by the proof in the record. Besides the plea of payment filed in the suit on the tenth March, 1868, admitted the correctness of the said account. The sole ground, then, for annulling the compromise is the alleged error as to the acceptance of the deed of the Live Oak plantation by Janney, the agent of the defendants. The plaintiff contends that it was an actual giving in payment to Ober, Atwater & Co., though in the form of a sale, for ten thousand dollars cash to Albert G. Ober. The defendants, however, contend that it was intended merely as collateral security for the debt of $18,303 49, due by plaintiff to them. The error which plaintiff insists vitiates the compromise, is that he was led by the statements of the defendants to believe that Janney, their agent, had noc accepted the deed at the time of the compromise. It appears that in May, 1867, the plaintiff made a written agreement with Albert G-. Ober to sell him the Live Oak plantation, in the parish of Concordia, for ten thousand dollars cash, the vendor retaining possession till first January following, and reserving the right to redeem it by returning the purchase price; the vendee was nor to bind himself to pay any of the existing mortgages on the property. On the twenty-second May, 1867, John Q. Packard and J. B. Packard ai pi a red before the recorder of the parish of Concordia to pass the deed pur.-uimt, in n.ur cement. Albert G-. Ober wrote to John Janney, advising him of the p oposed contract and askii g him to accept the act in his behalf. When the notary came to draw the deed he inserted a clause binding Ober to pay a special mortgage of $7500 existing on the property, believing it was necessary to do so in order to make a valid act. The Packards being in a hurry signed the act and left. Janney was not present. When became to examine the instrument he refused to accept it, because it was not drawn according to the agreement of the parties. In July, 1867, Albert G. Ober wrote to Janney, telling him that he did right in not accepting the deed, because it was not drawn according to instructions, but advising him now to accept it, and to let the error stand, till corrected by the Packards hereafter. [428] Under this instruction the deed was accepted by Janney, although he seems to have entirely forgotten it and also the receipt of the letter of July, 1867. About the time of the compromise he told Ober he had not accepted it; Ober told Sheldon, the attorney of Packard ; and a few days afterwards Janney, Ober, Sheldon and Packard happen to meet on a steamboat, and Janney told them, he had not signed the act. Even at the trial Janney swears he could not recollect having signed the deed, or the receipt of the letter of July, 1867, but his genuine signature was affixed to the instrument and the letter was attached thereto showing his authority to accept. It is very certain that Janney was honestly mistaken, for he could have had no motive in misinforming the parties. Ober swears he believed the statement of Janney to be true at the time the compromise was made; he informed-Sheldon thereof, but had no communication whatever on the subject with Packard. The compromise was suggested by the attorneys while taking testimony in the case. Sheldon, the attorney of Packard, swears: “That the settlement was made in the belief, on my part, that the facts as to the deed were very doubtful at least, if not decidedly against Mr. Packard; and I never had an inlimation that the amount sued for by Ober, Atwater & Co. was otherwise than correct, and I am confident that Mr. Packard believed that they rendered to him accurate accounts, until some time after the settlement, although he has never been convinced that Mr. Janney did not sign the deed, and upon this point I think he yielded to my judgment, and I was decidedly of the opinion that if he could get a deduction of half the amount expressed in the deed, or nearly so, it would be best for him; and I believe, from present recollection, that nearly that sum was deducted.” So it appears from the testimony of his legal adviser that Packard has never been convinced that Mr. Janney did not sign the deed, but yielded on this point to the judgment of his attorney, who was of the opinion that if he could get a deduction of neailyhalf the amount expressed in the deed it would be best, and nearly that sum was deducted in the compromise. But why should Packard be in ignorance as to the acceptance of the deed, an authentic act which had been standing for a year and five months recorded in the parish of Concordia, an adjoining parish to his residence 1 Besides, as a defense to the suit, eight months before the compromise he specially pleaded that he had conveyed in part settlement of the demand the Live Oak plantation, and that the deed was “duly accepted.” Is it to be supposed that a party who is sued for $17,896 66, and who has discharged $10,000 thereof by the giving in payment of a plantation, will remain in ignorance of the consummation of the deed for eight months after he [429] sets up this defense, when he knows that the desired information stands upon the public records of an adjoining parish and an authenticated copy of the deed can be had at a small expense and with a little delay? How could there be any difficulty or doubt about the acceptance of the deed. The act was authentic, and of course Janney had to sign it in the presence of the recorder and two witnesses. We are of the opinion that if Packard made the compromise in error of fact in respect to the acceptance of the deed, he was in no manner misled by the defendants; and it was because he failed to use reasonable diligence to get the information where he knew it could undoubtedly be found with little delay and at trifling expense. This was the most important defense to the suit which he had eight months before pleaded, and no prudent man would abandon it in the compromise if he thought it a good defense without making some exertion to procure evidence of the fact, during the period of that eight months. Besides, if the plaintiff had seén fit he could have protected himself by inserting in the act of • compromise a clause that it was made upon the condition that the deed or act of giving in payment had not been consummated by acceptance. It does not appear that Albert G-. Ober has ever obtained possession of the Live Oak plantation ; on the contrary, we find in the record a notarial act in which, in a few weeks after the compromise, he renounces and disclaims any title whatever to said plantation and abandons the same to John Q. Packard and James B. Packard. The compromise which the plaintiff seeks to annul was made by mutual consent of himself and the defendants for the purpose of putting an end to the law suit between them, and he preferred it to the hope of gaining, balanced by the danger of losing; it has a force equal to the authority of the thing adjudged. Revised Code, articles 3070, 3078. It ought not to be annulled for the reasons set up by the plaintiff. Entertaining this view of the subject, it becomes unnecessary to examine the other questions presented in the case. As the compromise can not be annulled, the suit upon the attachment bond must be rejected because it is one of the issues settled in the compromise. It is therefore ordered that each of the judgments in these consolidated cases be annulled and reversed, and that there be judgment in both suits for the defendants with costs. It is further ordered that the reconventional demand be rejected as of nonsuit, and the right be reserved to each of the litigants in a separate suit to demand the inforcement of the reciprocal obligations of the compromise.