A. Adler & Co. v. Burton Lumber Co.

The opinion of the court was delivered by Miller, J. The plaintiffs, holders of promissory notes given by the defendant for the credit portion of the price of certain logs pur [381] chased by him, bring this suit to compel payment of the notes. The original and supplemental petitions set forth the purchase of the logs by defendant, the execution and delivery of the notes in part settlement of the price, the acquisition of the notes by plaintiff, and there is the averment that plaintiffs are informed and believe that the notes are secured by the vendor’s privilege. On these petitions, supported by affidavit, a writ of sequestration issued and the logs were seized by the sheriff. The plaintiffs soon after applied for an order to sell the property pendente lite on the ground that lying in the Mississippi river, it was expensive to keep and liable to be lost. The defendant moved to dissolve the writ on the grounds that the affidavit was insufficient and that plaintiffs had no privilege. The lower court dissolved the writ on both grounds and dismissed plaintiffs’ application to sell the property. Prom this judgment plaintiffs appeal. The motion to dismiss for supposed insufficiency of the affidavit is based on the averment in the petition that plaintiffs are informed and believe that the notes are secured by the vendor’s privilege. This privilege arises from the nature of the debt. The petition set forth that debt — i. e., that the notes were given to the vendor by the defendant for the price of the logs, and that the notes are unpaid. These allegations are supported by the requisite affidavit. The averment in the petition that plaintiffs are informed and believe that the notes are secured by the vendor’s privilege, announce merely the legal conclusion necessarily arising from the facts stated in the petition and sworn to by the attorney for plaintiff. We can not perceive any defect in the affidavit. It was stipulated in the contract for the purchase of the logs that the notes were to be given for part of the price. The vendor from whom or through whom plaintiffs acquired the notes, gave to defendant a receipt reciting the receipt of the price of the logs, stating settlement in full, with this addition: “the payment being all satisfactory and in notes.” The contention of defendant is that under the receipt expressing “ payment in notes ” there is no privilege on the logs, or in other words that the privilege of the vendor is destroyed because of the form of this receipt. The vendor’s privilege arising by operation of law from the contract itself, is not readily presumed to be relinquished. The privilege exists without stipulation, and its relinquishment is to be deduced [382] not from inference, but only from the consent of the vendor expressed or plainly implied. Bacchus vs. Moreau, 4 An. 313 ; Boner vs. Mahle, 3 An. 600. It is not easy to infer any release of the privilege from the frame of this receipt. After all, the supposed relinquishment involves the question of intention. It would be forcing the significance of words to hold that the vendor intended to surrender his privilege by the words “ payment in notes.” The words themselves imply not a payment absolutely, but the giving of notes to represent the price. Of course, novation of the debt extinguishes the privilege. But is there any novation by the creditor taking notes from the debtor for the debt? This would seem to be answered in the negative by the text of the Oode — that the privilege subsists though the creditor take a note, and by the articles of the Oode defining novation. Oivil Oode, Arts. 3227, 2185, et seq. Novation not arising from the fact that the vendor takes notes for pricé, nor arising from any inference consistent with the significance of the language of the receipt, the remaining contention of defendant is that the receipt expresses payment of the debt. Does it? The receipt is qualified. It is “ receipt for the price, payment in notes.” The qualification is material. Its import is that the debt is not paid, but still subsists in the form of notes. The receipt imports a mere change of form, but the debt itself with the privilege attached to it remains. In reaching this conclusion we are aware there are some dicta seemingly to the contrary as to the import of “received payment by notes.” We can not give to the words used here the meaning of an absolute payment, a meaning we think, repelled by the language and the manifest intention of the party. We are aided, too, in this case by the proof in the record that there was no intention to novate. The authorities later in date in our own reports sustain, we think, our conclusiou, and as to the French authorities arrayed in the brief of plaintiff, they are practically unanimous that there is no relinquishment of the privilege in a case like this. See Bourgeat vs. Smith’s Syndic, 16 La. 469; Bergeron vs. Patin, 34 An. 535. But the application to sell the property pendente lite, we do not think should prevail. To sell a defendant’s property before any judgment against him for the debt, occurs to us as involving the exercise of power which, if it exists, at least, is to be exerted only in exceptional cases. Without passing on the question of power at all, it suffices to say, we decline its exercise in this case. [383] The views we have expressed control the decision, and obviate more detailed reference to other points in plaintiff’s briefs, to which we have given careful attention. It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed in so far as it refuses the application to sell, and reversed in so far as.it maintains the motion to dissolve plaintiff’s writ of sequestration, and appellees pay costs.