Newman v. Cannon

[714] The opinion of the court was delivered by Fenner, J. The case presents a conflict between plaintiffs, who are attaching creditors, and certain creditors who claim the vendor’s privilege. D. Blum was a merchant carrying a general stock of merchandise, the whole of which was attached by EL & O. Newman. .Thereupon, numerous other creditors, who claimed privilege as vendors on particular portions of stock, sued Blum and issued writs of sequestration under which they seized the goods on which they respectively claimed the privilege, which goods were already in the hands of the sheriff under Newman’s attachment. The whole stock was sold under order of the court, the various lots of goods on which privileges were claimed being appraised and sold separately. The several suits were separately tried. H. & C. Newman obtained judgment against Blum, with privilege on the property attached. The other creditors also obtained judgments against Blum, recognizing the privileges claimed on the particular goods sequestered. Although EL & O. Newman were not parties to the several sequestrations brought by the creditors claiming privilege, an agreement is found in the record under which their attorneys were accorded and exercised the right to take part in the trial and argument of said case; and it was further agreed that, “in the event of subsequent proceedings for judicial distribution of said fund, the evidence offered at the original trials of said suits be used in said proceedings for distribution,” and also that, in event of appeal from the judgment of distribution, the said evidence should be copied in the record. The suggestion is advanced that, by reason of this participation of H. & C. Newman in the trial of the sequestration suits, the judgments rendered therein have the force of the thing adjudged against them; but we think the whole tenor of the agreement indicates that its sole purpose was to avoid the retaking of testimony in the distribution proceedings, by allowing the attaching creditors to excercise their right of cross-examination and argument in the original suits. We think the attaching creditors are not bound by the judgments thus rendered, but had the right to contest the privileges claimed in the distribution proceedings and on appeal therefrom. The present appeal is taken from the final judgment of distribution arising on a rule taken on the sheriff, by EL & C. Newman, to show [715] cause why he should not pay over to them the proceeds of sale remaining in his hands, to which rule the creditors claiming special privileges were made parties. The judgment allowed the several privileges claimed, of which the appellants, H. &. O. Newman, complain on various grounds. I. Two of the creditors claiming privilege, viz., Scharff Bros, and the Mansur & Tebbetts Implement Co., are merchants of St. Louis, and, as to them, the point is made that the sales were Missouri contracts governed by the law of that State, which does not recognize the vendor’s privilege. The evidence is very positive that the sales were made in Louisiana by agents of the vendors, who had full power to make final and binding contracts, and that the goods sold were to be delivered and were actually delivered and accepted in Louisiana. There is no room for controversy that such .a dealing locates the sale in Louisiana and subjects it to our law. The case of Claflin vs. Meyer, 41 An. 1048, relied on by appellants, is really authority against them, because the absence of the characteristics above stated is made the conspicuous reason for the denial of the privilege there claimed. II. We can not approve the construction sought to be placed by appellants’ counsel on Article 8280 of our Code, which is as follows: “ When the things reclaimed consist in merchandise, which sold in bales, packages or cases, the claim shall not be admitted if they have been untied, unpacked or taken out of the cases and mixed with other things of the same nature belonging to the purchaser, so that their identity can no longer be established.” • The counsel contends that the mere facts of unpacking and mixing with other goods of the purchaser, are intended to exclude the claim, and that the qualification, ‘1 so that their identity can no longer be established,” only assigns the reason why-the legislator ordained the exclusion. This construction deprives the qualification of all force and effect, and would give the statute the same meaning which it would have if it had not been inserted at all. This is contrary to sound rules of construction, and we think it very clear that the statute means such a mixing with other goods of the purchaser as would disable the vendor from establishing their identity. [716] III. Nothing remains except an examination of the evidence in the several cases to establish the identity of the goods on which the respective privileges are claimed. So far as the claims of L. Godchanx, Scharff & Bros., and the Mansur & Tebbetts Implement Company, are concerned, we do not understand that there is any dispute that they have sufficiently established the identity of the goods sold by them. . The claims of A. Lehman & Co., Jaubert Bros., A. Baldwin & Co., and the Haller Manufacturing Company, present serious difficulties. Lehman & Co. and Jaubert Bros, are jobbers in dry goods, dealing in goods not manufactured by themselves or dealt in exclusively by them. The evidence does not satisfy us that a large portion of the goods sequestered by them remained in such a situation that their identity could be established. They seem to have based this identification largely upon the claim that all the dry goods found in Blum’s stock had been bought from their firms, and that what did not belong to one belonged to the other. This is not the kind of identification required by the law. The goods themselves must remain capable of identification; otherwise the privilege is lost. The evidence altogether is unsatisfactory and contradictory. Doubtless a part of the goods were satisfactorily identified, but another part, consisting of numerous remnants of staple goods, which might have been bought from any dealer, certainly did not admit of such identification. The record does not present the means of distinguishing those which could, from those which could not, be identified; or what were the respective prices brought. • The claim of A. Baldwin & Oo. is subject to similar objections, and, in addition, the fact is exhibited by the record that, in the case of several articles, the number identified, sequestered and sold actually exceeds the number sold to Blum. Thus, while the account sued on exhibits sales of only two dozen hatchets, four French pots, etc., the list of goods identified and sold by the sheriff shows four dozen hatchets, twenty-one French pots, etc. This shows how uncertain was the means of identification, when applied to such goods as cow-bells, sheep-bells, files, monkey-wrenches, paint-pots, ovens, chains, coil,of rope, etc. The account of the Haller Manufacturing Company comprises tin [717] ware, of which they were manufacturers, and hardware. The former was doubtless easily and properly identified, But their identification of the articles of hardware exhibits the same uncertainty as that of A. Baldwin & Oo. They also identified and sequestered a greater number of several articles than appeared on their own accounts. We have no doubt that all of these parties have identified and are entitled to privilege on some of the goods sequestered by them, but not as to all; and the evidence, as now presented, does not enable us to distinguish between them. It may be that under a remanding of the cause, they may be able to improve the certainty of their identification and to separate the price of the goods properly indentified from that of those which can not be identified. It is, therefore, ordered, adjudged and decreed that the judgment appealed from, in so far as the claims of Scharff Bros., Leon Godehaux and the Mansur & Tebbetts Implement Oo., be now affirmed; and that in other respects, the same be avoided and-reversed and the ease remanded for further proceedings according to law and the views herein expressed. Costs to abide the final determination' of the cause.