Moore v. Clapp

The opinion of the Court was delivered by Bermudez, C. J. The plaintiffs claim to be creditors of the defendants for the sum. of $3000, in consequence of their acceptance of a certain stipidation in writing made in their favor by the latter. The defense admits the writing, but is practically a general denial. There was judgment for $1860, with interest in favor of plaintiffs and the defendants aiipealed. In their answer to'the appeal, the plaintiffs join' therein and pray that the judgment be increased to $2900, with interest. The material facts disclosed by the record are simply the following: On October 3, 1877, the plaintiffs were creditors of J. H. Aciden, a planter, for some five thousand dollars. On that day, Clapp Bros. &-Co., Aclden’s merchants, wrote to him in these^terms: [691] “We beg to say to you tliat, on receipt of the first 100 liogsheacis of sugar of your growing crop, we will pay your draft to John T. Moore & Co. for two thousand dollars, and will pay your draft for $1000 in favor of said parties on receipt of each additional lot of 50 hogsheads sugar.” This writing was immediately transmitted to John T. Moore & Co. by Acklen, who thus wrote to them: “The enclosed letter from Messrs. Clapp & Co.' explains itself. Mr. Emory Clapp agreed with mo in reference to my drawing on my first shipments,, but said that part had been covered by my draft to you of $3000, already paid. I enclose you (2) two drafts of respectively $2000 and $2500, though this is hardly the shape I would have put it in, nor exactly what wo spoke of. Should you feel any uneasiness in this matter, let me know at once, for your courtesy in this transaction has been such that I am highly appreciative of it, I assure you,” etc. On March 4th following (1878), Acklen notified his merchants not to pay those drafts. This injunction -was notified by the defendants to the plaintiffs, who answered, protesting against any deprivation of their vested rights and notifying defendants to hold themselves in readiness to pay, without regard to Acklen’s letter. On November 20, 1877, plaintiffs presented to defendants the $2000 draft, which the latter refused to pay, because they had not received 100 hogsheads of sugar, and could not pay until then. Plaintiffs then instituted inquiry and subsequently ascertained from Foos & Barnett, the sugar planters who had a contract with Acklen to clarify his syrup and produce therefrom granulated sugar, that they had shipped to defendants 145 hogsheads of sugar, 93 in the name of Acklen and 52 in their own name; the last shipment being thus made under an understanding with Acklen and Clapp Bros. The instruction from Acklen to Barnett, one of the firm, is dated New Orleans, January 10, 1878, and in these terms: “ Mark entire balance of sugar: Foos & Barnett. Telegraph Clapp Bros. & Co. at once from Morgan City that you will ship over thirty hogsheads so marked. Show Nealy this; letter by mail.” A letter to Foos & Barnett from Clapp Bros., dated New Orleans, January 18th following, contains the following: [692] tlie balance is to be paid Mr. Acklen’s manager of the store for division among the hands. This is Mr. Acklen’s instructions. It is immaterial how the sugar is marked, let it be shipped in your neme and for your own account, and we will send you back the proceeds.” [691] “We have no interest in this sugar, as the proceeds will be divided among yourselves and the laborers, and you will therefore ship the sugar in your name and for your account, and when we will sell it the proceeds are to be returned to you and after you have paid your account [692] Barnett testifies that under their contract with Acklen for clarification and granulation, there was duo Eoos & Barnett some $3000 which were paid them by Clapp Bros, three or four days before they shipped the sugar. He further says that they afterwards had no interest in the sugar, and that it was only because of the instructions from Acklen and Clapp Bros. & Co. that it was shipped in their name. “ They instructed us,” says he, “to ship it that way and we did so. We had no interest in the matter whatever. It was Mr. Aelüen's sugarr and he could home it sent iohenever he pleased. It was none of our business." Erorn this statement of the facts, as we find them, it would appear at first blush that the defendants had no valid reason to object to the payment which they were called upon to make; but they earnestly contend that they are not liable at all to the plaintiffs; that subsequently to their engagement of October 3,1877, they never received a shipment of 100 hogsheads, but one of 93 hogsheads only, and that such shipment not being that stiprdated in their engagement, they are not bound for the payment of the draft for $2000 already mentioned. They further contend that the 52 hogsheads which constituted the second shipment did not belong to Aciden, as it was made by Eoos & Barnett, in their own name and for their account, and were sold and the proceeds applied accordingly. They moreover urge that, if Acklen was the owner of the sugar, Eoos & Barnett had a lien on it for the amount due them; that they also, Clapp Bros. & Co., had a privilege on it for advances under two contracts with Acklen — one under private signature and another in the authentic form; the latter being an act of mortgage to secure $14,-000, both acts dated March 1,1877; the last mentioned only was recorded on the 3d following; that they had an interest in discharging the amount due Foos & Barnett; and that on doing so they were legally subrogated to all their rights against the sugar. They finally insist that, under the terms of their letter of October 3, 1877, they are not bound to pay the drafts therein mentioned in favor of plaintiffs, unless the sugar shipped was delivered free from all liens and privileges, and that the 52 hogsheads in question arrived burdened with a claim upon it. We consider the first objection as abandoned, as we find in defendants’ brief the following language: [693] “ There is bo issue between the plaintiff and ourselves as to the debit of the 93 hogsheads. It is agreed that under our letter of October 3, 1877, we are justly chargeable with them. But as to the 52 hogsheads, there is an irreconcilable difference of opinion. The question about which that difference obtains is this: “ Is the receipt of the 52 hogsheads by the defendants to be held as a partial ñüfiUment by Aeklen of the condition on which defendants undertook the obligation in favor of the plaintiffs?” Should it be claimed that we misunderstand this statement, and that the defendants nevertheless resist because they did not receive the one hundred hogsheads stipulated, then we simply remark that, although it would have been legitimate for the defendants to have declined receiving a number of hogsheads less than that mentioned, they cannot set up that objection after receiving a lesser quantity of hogsheads. They thereby relinquished their right to reject, and by accepting the shipment they made themselves liable pro tanto. Chitty on Contracts, 1083-4; 22 A. 150; Benjamin on Sales, 18 Pick. 178, 553. This expression of our views applies not only to the first, but to the second; therefore, to both shipments. It dispenses us from examining and passing upon the abstract and interesting question which defendants’ learned counsel has discussed with his usual sagacity and ability and submitted to our consideration, namely: “Is the accomplishment of a suspensive condition of a contract divisible or indivisible?” From that statement and admission, and from our views in addition, it clearly follows that as the judgment appealed from subjected the defendants to liability only for the amount thus confessed to be chargeable, the finding of the district judge must be affirmed in that respect. The remaining question consists in determining: whether, under the answer of the appellees, the amount allowed by the lower court should be increased so as to hold the defendants responsible besides, in consequence of the shipment of the fifty-two hogsheads by Foos & Barnett. We deem it proper to premise that the obligation assumed by the defendants in their letter of October 3, 1877, in favor of plaintiffs, was not a nudum pactum, one for which no consideration passed. Moore & Co. had a heavy claim for supplies furnished the plantation and considered that they had a right to a privilege which they could enforce, with a preference on the crop. The testimony of one of the defendants indicates pretty clearly that the arrangement culminating in the letter, was the result of a sort of compromise devised to avert litigation. The object was then to [694] silence plaintiffs. This was done by securing only part of their claim. Had not this been accomplished the defendants might have been losers. The resistance now offered by them to the plaintiffs cannot be sustained, unless justified by law or equity. There can be no doubt that these hogsheads never ceased to belong to Aciden, to the knowledge of the defendants and of, Poos & Barnett. The transactions relative to them clearly establish that fact. While it is true that Poos & Barnett had for the clarification and granulation of the syrup converted into the sugar, a lien and privilege upon the sugar, the result of their work, it is no less so, that, on payment to them of the amount due them, before the shipment, their claim and their lien and privilege, at least as far as they are concerned, vanished completely. They, themselves, aclcnoioledge that they then had no interest in the sugar, which xoas Aclclen’s exclusive property. The sugar was never theirs. They never claimed it as belonging to them. They merely asserted a claim upon it. The moment that claim was satisfied, the sugar was disencumbered and was Acklen’s absolutely. Had Poos & Barnett not been previously paid and had they consigned the sugar to Clapp Bros. & Co., in their name, to be sold for their account, a different case might have been presented. Whatever, even then, the responsibilities of Clapp Bros. & Co. might or not have been to the plaintiffs, they merely would have been accountable to Poss & Barnett, their assignors, for the proceeds. But as Poss & Barnett had been satisfied before the sugar was shipped, Clapp Bros. & Co. had no further responsibility towards them. An examination of the text of the two contracts, under private signature and authentic, invoked by the defendants, leads us to the inference that it was not thereby understood that, as a security for the reimbursement of advances made by them, they would have a lien on the crop. No dortbt, privileges are the creature of the law, but they are strieii juris and arise only in the cases and in the circumstances specified by law. Whatever the terms and stipulations in those acts be, it is clear that a privilege does not exist in favor of one not shown to be a creditor, for it is an accessory. There can exist no accessory in the absence of a principal. At the time the contracts were entered into,-1877, such privilege was regarded by the jurisprudence as one which should have been recorded. It is not shown, however, that the defendants were creditors for advances made anterior to the date of their payment to Poos & Barnett [695] of the $3000 already mentioned, and that there was a registry from which such privilege,' in favor of Eoos & Barnett, could be deduced. But, even conceding that the defendants were privileged creditors and were legally subrogated by the payment of a claim which was secured by a lien and was preferable to theirs, the question still remains: whether, under the terms of the letter of October 3, 1877, containing formal stipulations in favor of John T. Moore & Co., which became irrevocable by their acceptance, they, the defendants, can be heard to set up, successfully, their own claim thus acquired as against their obligees. Clapp Bros. & Co. aver and insist that, under the letter and spirit of that contract, they bound themselves to pay, only on condition that the sugar would come to them free from all liens cmd privileges, and that the fifty-two hogsheads in question were burdened when they were shipped by Foos & Barnett. The letter is couched in clear and unambiguous language. By it, Clapp Bros. & Co. bound themselves to pay Acklen’s drafts in favor of Moore & Co. on one condition only, which was the shipment of the sugar, the payment to be made on receipt of the sugar and to be graduated by the quantity received. The condition that the sugar, consigned and received, was to he free from all encumbrance, was not inserted by Clapp Bros. & Co., and cannot be interpolated by this Court to the damage and injury of the third parties to whose benefit the stipulations were otherwise unquali-fiedly made and who acquired vested and irrevocable rights to the same by their acceptance of them. R. C. C. 1890, 1902. If the case was doubtful, the agreement would have to be interpreted against them, for they contracted the obligation. Where doubt or obscurity arises for the want of necessary explanation which one of the parties ought to have given, the law provides: that the construction most favorable to the other party should be adopted, be that party obligor or obligee. R. C. C. 1957, 1958. It is good evidence of the existence of doubt or obscurity, that the members of this Court are divided in opinion on the subject. Even if the contract contained the condition that the sugar should come free from ail liens, it could not be plausibly argued that such a clause would cover liens in favor of the obligors, for such could not be within the interest of the parties. The law applicable to this case is too plain to be misunderstood and misapplied. [696] A stipulation pour cmiriá may be revoked at any time before acceptance, but not afterwards. 3 N. S. 207; 11 L. 44; 6 A. 26; 6 R. 410 ; 12 R. 152 ; 2R. 304. Creditors may avail themselves of a third person’s obligation, ex ceguo et bono, to their debtor. 3 A 294. A creditor suing a third person who has assumed the debt on a contingency which has happened, cannot be defeated by equities which the latter may have against the original debtor. 8M.60; 4L.238; 18L.42. Where a letter authorizes the party to whom it is addressed to draw, up to a certain amount, on the writer and is evidently to be exhibited to third persons to induce them to take the bills so drawn, the promise which the letter contains is a promise to any one taking a bill on its faith. 3 A. 690 ; also 10 A. 340; 12 R. 52; 18 A. 678; 27 A. 653 ; 28 A. 140; 18 Wall; E. Converse, 30 A. 199; 28 A. 88. Factors who promise to accept the draft of a shipper as soon as they receive a bil! of lading of the consignment are bound on receipt of the bill and can only apply to a debt due them by the owner, the surplus of the proceeds of the consignment. 19 L. 218. From whatever standpoint the matter can be viewed, it is undeniable that the crop consigned: the sugar and molasses (including the fifty-two hogsheads shipped by Foos & Barnett), have realized more than was necessary to pay the shippers, the hands and the plaintiffs’ present claim $2900. After a full review of the facts as shown by the record and an attentive consideration of the law applicable to the case as stated by counsel and as found by us, we are unable to come to the conclusion that the obligation sued on is to be construed as incorporating the condition that plaintiffs’ drafts would only be honored, if the sugar mentioned in the instrument should be received free from all lions. We cannot even then admit that uffien it was received, it was in any way burdened. It is, therefore, ordered and decreed that the judgment appealed from be 'amended by striking therefrom the words “ eighteen hundred and sixty dollars” ($1860), and substituting thereto the words “twenty-nine hundred dollars” ($2900), and that thus amended, said judgment be affirmed, with costs in both courts. Justices Fenner and Manning dissent.