Irving v. Edrington

The opinion of the Court was delivered by McEnery, J. The plaintiff alleges that lie entered into a contract with the defendant Edrington, on the I5th of February, 1887, for the purpose of obtaining supplies, money, etc., to cultivate the Australia plantation in Madison parish, and that said Edrington executed a written agreement with the usual stipulations for liens and privileges, in favor of plaintiff, and as collateral security, executed five promissory notes in Vicksburg, and payable in said city, for $1000 each, with interest from maturity, and maturing at different dates from 1st day of October, 1887, to the 15th of January, 1888. He alleges that ho had complied with his agreement, furnished the necessary supplies and money, and that the defendant failed to ship cotton to him as ho had contracted to do, and that there is a balance due him of $3762 77, with ten-per cent interest from March 15, 1887, for which ho asks judgment with recognition of privilege on property attached in the suit, a mortgage on the mules, farming implements, etc. Edrington, the defendant, was a non-resident, and an attachment issued against his property. The oath for the order was made by plaintiff before a Commissioner for the State of Louisiana, the service of citation was made by a minor, and posted at the court house door. The allegation in the petition of defendant’s non-residence was sufficient grounds for an attachment. A Commissioner for the State of Louisiana, residing in another State, is an officer of the State, commissioned by the Governor and specially authorized to administer oaths. The court house is a two-story building with four public entrances. The returns on the writs show that they were j>ostcd at the court house door, and, as it is not contradicted, it is presumed it was posted at the usual place where such notices are posted by the sheriff. [673] The service of citation and papers in a suit by a minor, who is a deputy sheriff, will not vitiate the service, as ho is a de facto officer. The motion to dissolve the attachment was .properly overruled. The defendant, before answering, filed a motion and obtained an order requiring plaintiff to produce and file in court a specified bill of particulars, itemized accounts, showing dates, debits and credits, between plaintiff and defendant. There were several motions to this effect, and numerous objections to testimony, all of which grew out of the fact that the suit of plaintiff was treated as a suit on an open account. The suit is based on the promissory notes executed by defendant, as collateral security for the supplies and money to be advanced. The plaintiff had the undoubted right to sue on the notes and to treat them as the pledgee could do, and sue directly on them and to obtain judgment for the balance due, unless the defendant showed.a want of consideration, on the part of the plaintiff’s failure to comply with- his obligation, in furnishing the necessary supplies and money, and advances as stipulated and agreed upon in his contract. 40 Ann. 631, 6G7. And this view taken of the suit lias caused some confusion in the. in troduction of several accounts of Geo. S. Irving, Irving & Co., and the Geo. F. Irving Co., and it has' occasioned the' presentation of a.vigorous, able and plausible argument on the part of defendant’s counsel. The contract was made by the defendant with Geo. F. Irving. He had no contractual relations with Geo. F. Irving & Co., or the Geo. F. Irving Co. Geo. F. Irving may have been a member of, and undoubtedly was the controlling member of the company and the corporation, but they were distinct personalities. 'They were strangers to the suit, had no interest in it, and if Geo. F. Irving obtained from them the goods, advances and other things furnished to the defendant, their accounts of them, whether delivered directly to Geo. F. Irving, to be delivered to defendant, or to the defendant directly, were certainly admissible as evidence to show that they had been furnished to the defendant by plaintiff in accordance with his . contract, and as a consideration for the notes sued on. They were, when proved, mere vouchers for the amounts furnished by plaintiff to defendant. Between the plaintiff and the defendant the sole question then is : has he- complied with his contract and furnished the plaintiff the articles embraced therein? The articles furnished are necessary plantation sup-plies. This is proved by several witnesses. John A. Klein, the bookkeeper of Goo. S. Irving, swears positively that he had been in the employment of plaintiff eight years, and tluit he had furnished the defendant monthly statements, which were puf in674 defendant’s mail box at Reynold’s drugstore, in Vicksburg, and that defendant had received them is shown by his statement to the bookkeeper that he did not understand some things in the accounts. He promised to explain them to defendant, but he never called and requested an explanation. Geo. S. Irving, the plaintiff, in his testimony, states that accounts were rendered the defendant monthly, and that he never made any complaints as to their correctness. Two accounts, marked “ C ” and “ D,” were offered in evidence by plaintiff and objected to by defendant on the ground that each one of them was too vague, inexplicit and indefinite to admit of proof, and that the evidence sought to bo adduced is irrelevant, an attempt to prove res miar alios aeia and inadmissible under the pleadings. The first objection was sustained. The view we have taken of the case disposes of the second objection. The defendant had been furnished with monthly statements, and the accounts offered in evidence in some of the items charged, summarize the items previously furnished the defendant. On plaintiff’s motion, a number of accounts which had been rendered by plaintiff to defendant, and which wore in his possession, were produced and filed with defendant’s answer to the-rule. Those bills all contain itemized statements of cash advanced and items of “ purchasos,” “ merchandise,” which had boon rendered by specific items on monthly statements. The witness Klein states that these accounts correspond with the accounts rendered defendant, as they were taken from the same books and vouchers, the only difference being that in tlie ledger the names of the parties upon whom drafts were given are not put down, but in the two accounts the amounts are the same. The defendant offered no evidence in rebuttal of plaintiff’s testimony. The suit was based upon the notes executed by defendant, and it was incumbent upon him to prove a want of consideration. This he has failed to do. S. Brown & Co. intervened in the suit. They entered into an agreement with the defendant to advance and supply the tenants on defendant’s plantation, and the defendant waived and renounced in favor of Brown & Co., the lessor’s privilege on the crops to be produced on said plantation. This contract was recorded in the parish of Madison. On an agreement to make additional advances, the leases and contracts for rents were transferred to Brown & Co. They advanced to the tenants $10,954 37, and made further advances [675] while the plantation was under seizure. The advances after the seizure were made under arrangements with plaintiff and defendant, and the contract of the intervenors was thus ratified and approved by the plaintiff. There was no seizure under the attachment of the growing crops, and therefore the intervenors’ privilege as owner of the rent notes was unaffected thereby. We have carefully examined the testimony offered by the intervenors, and conclude that they have fully proved their claim. There are objections by plaintiff that the items furnished ,are not plantation supplies necessary to the raising of a crop. But the same objection can, with equal propriety, be urged against the accounts of the plaintiff. There was error in the judgment of non-suit against the plaintiff. It is, therefore, ordered that the judgment appealed from be amended, so as to avoid and set aside the judgment of non-suit rendered against the plaintiff, and it is now ordered that there be judgment in his favor against the defendant, Wm. H. Edrington, for the sum of $3762 77, with interest at the rate of ten per cent, from March 16, 1888, and that the attachment be reinstated, and plaintiff’s privilege resulting therefrom be recognized dnd enforced and rendered executory on all the property seized under said attachment, except that subject to the lien and privilege of the intervenors, Brown & Co., and that plaintiff’s privilege, as a furnisher of supplies, be also recognized and enforced on all the crops raised on the Australia plantation, except those covered by the judgment rendered in the court below in favor of the intervenors, Brown & Co. In other respects the judgment appealed form is affirmed, the defendant to pay costs of appeal.