Hewitt v. Williams

The opinion of the court was delivered by McEnery, J. The plaintiff instituted suit against defendant for the sum of eight thousand, six hundred and fifty-three dollars and forty-one cents, with interest, for money advanced, goods and — 745 — merchandise supplied, all necessary advances furnished defendant to raise the usual crops on his plantation in Red River parish, for the year 1893. This sum is made up of a note for one thousand nine hundred and fifty dollars dated July 5, 1892, due December 5, 1892; a note for five hundred and twenty dollars dated September 7, 1892, due January 7,1898, both payable to the order of the Traders’ Bank, of Mansfield, and endorsed in blank by the bank; a note for one thousand and fifty dollars dated April 11, 1893, due January 1, 1894, to the order of defendant, and by him endorsed; a note for three thousand seven hundred dollars dated May 29, 1893, due December 15, 1893, to defendant’s order and by him endorsed, and an account for one thousand nine hundred and forty-five dollars and sixty-nine cents for the year 1893, and a balance on an account of two hundred and thirty-seven dollars for necessary supplies furnished defendant for the year 1893, by the Hicks Company Limited, of Shreveport, and for which the plaintiff was responsible. A writ of sequestration, issued on the usual affidavit, accompanied the demand of plaintiffs under which the crops of 1893 were sequestered. The defendant filed exceptions to the suit as follows: 1. That plaintiff did not annex any of the notes sued upon to his petition, or give sufficient description of them to' inform defendant or put him on his defence. 2. That the two notes of April 11, 1893, for one thousand and fifty dollars, and May 29, for three thousand seven hundred dollars, were not due or demandable at the date of the institution of this suit. 3. That plaintiff does not allege that he is the present holder of any of these notes. 4. That he was not the owner or holder of the notes sued on, nor was he in possession of them. 5. That neither of the accounts sued on are annexed to the petition, nor any of the items given, or other description of what they purport to be for, nor of the notes or character of said accounts or other specification, to enable defendant to plead or defend against them. The first, third, fourth and fifth grounds of exception may be considered together. It is no cause for the dismissal of the suit that the plaintiff fails to annex documents to the petition. An intelligent cause of action set — 746 — out in the petition is sufficient. The defendant, of course, has the right to demand an exhibit of the documents, and on the failure of the plaintiff to produce them, he will not be required to answer the demand made against him, and the dismissal of the suit will be the penalty of plaintiff’s failure to produce. C. P. 175, amendment; Smith’s Heirs vs. Blunt, 2 La. 132; Police Jury vs. Mahoudeau, 27 An. 224; Lamorere vs. Cox, 32 An. 1046. In the case at bar the notes are accurately described in the petition, but are not made part of the same; and the statement of the account in the petition is based upon a bank account for money advanced to defendant, placed to his credit, and which he drew out on his own checks, or by checks for supplies, drawn by the Hicks Company, Limited, on the order of defendant. He must then have known, of his exact standing with the bank, and he stands in the same position of one to whom a detailed statement has been made and accepted.' The petition declares that the plaintiff is-the owner of the claim sued on. He asserts his privilege, asks for its recognition and a personal judgment for the amount sued for, and there is an allegation of ownership. Some of the notes were pledged by plaintiff when the suit was instituted. The defendant has no interest whatever in protecting the rights of the pledgees. His only concern is in protecting his own rights, and this can be done more effectually if he has defences against the notes where they are in the hands of the original holder. If the notes are produced on the trial and tendered to defendant, he certainly has no cause to complain, as his payment to the holder would be a valid extinguishment of the note. The general rule is that the pledgee is the prima facie owner of the pledged note, but this does not prevent him from authorizing the pledgor, the real owner of the note, from instituting suit on it. • The second ground of the exception is more serious, and in noticing it, we will consider here that part of the motion to dissolve the writ of sequestration which relates to the plaintiff’s right to maintain the writ of sequestration on an unmatured obligation. The two notes of April 11, 1893, for one thousand and fifty dollars, and of May 20, same year, for three thousand seven hundred dollars, were not due at the date of the institution of this suit. There is no law which authorizes the institution of a suit on a debt not due, except in cases where conservatory writs are allowed to — 747 — protect the creditor who holds a privilege of a certain kind, such as the lessor’s privilege (Art. 244, Code of Practice) ; and the holder of a special mortgage, who apprehends that the mortgaged property-may be moved out of the State before he can have the benefit of his mortgage (Art. 275, Code of Practice) ; and in attachment proceedings, where the creditor makes oath that the debtor is about to move his property out of the State (Art. 248, Code of Practice). There were no grounds to support the filing of the suit on these two notes, as they do not come within the exceptions to the general rule provided for in Arts. 244, 248, 275, Code of Practice. Egan vs. Push, 46 An. 474. The prayer of the petition is for an absolute judgment for the amount of these two notes. No supplemental petition was even filed alleging that they had matured since the filing of the suit. The sequestration to protect the amount of these notes having unadvisedly issued, the judgment as to them should have been of non-suit, without allowing the sequestration to remain in force as to them until a supplemental or amended petition could be filed. The case referred to by plaintiff’s counsel in 23 An. 578 has no application here, as the demand for rent in that case was based on one of the exceptions provided by the Code of Practice for the institution of a suit on a privilege claim before its maturity. Defendant filed a motion to dissolve the attachment on the grounds: First, that the plaintiff does not establish by his allegations of affidavit that hejhas a privilege on the property sequestered; second, that plaintiff’s allegations and affidavit in relation to the account for one thousand nine hundred and forty-five dollars and sixty-nine cents are insufficient to authorize the writ; that he was liable as surety to Hicks & Co., Limited, for balance of account, two hundred and thirty-seven dollars and fifty-five cents and had not paid same; that the transfer of said account for one thousand nine hundred and sixty-five dollars and sixty-nine cents to the plaintiff by the cashier of the bank was contrary to public policy; that the affidavit is not true. That part of the motion, denying the ownership of the debt and its privilege character, was referred to the merits. The plaintiff has sworn to the existence of the debt, and that he has a privilege on the property, and to the fear stated in Par. 8 of Art. 275, Code of Practice. This is sufficient, and brings this case — 748 — within the doctrine announced in Lowden vs. Robertson, 40 An. 825. The law does not require the plaintiff to detail the facts upon which his fear is based. Id. We have already noticed the sufficiency of the allegations in the petition in reference to the account. The defendant’s answer is a general denial, with an affirmation of the special defences in his exception and motion. The wife of defendant intervened in the suit, claiming the property sequestered as having been given to her in act dation en paiement on the 12th December, 1893, the day in which the writ of sequestration issued, and delivered to her before the seizure under the writ. There was judgment below maintaining defendant’s exception of prematurity to the suit on the notes not due when the suit was instituted; but leave was granted to plaintiff to bring another suit on these notes, and in the meantime the sequestration of the property was ordered to remain in force to await the filing of said suit to perfect the seizure. Judgment was rendered for plaintiff for. the full amount of the other notes and on the account. The privilege of plaintiff was recognized and its enforcement ordered on the sequestered property for the amount of the note for one hundred and fifty dollars, and for nine hundred and sixty-nine dollars of the account. The privilege claimed for the two notes dated in 1892 was denied, and the balance of account of Hicks Company, Limited, for two hundred and thirty-seven dollars and seventy-five cents was rejected. Plaintiff and defendant both appealed from the judgment. Merits. Plaintiff and defendant were the only witnesses sworn as to the contract entered into for money and necessary supplies for defendant’s plantation in 1893. The former swore that he individually furnished the money and supplies, and that the Traders’ Bank at Mansfield, of which he was the president, was employed only as a matter of convenience to both parties. The latter’s statement is that he was under the impression, as he had n.o contract individually with plaintiff, that the bank was furnishing him, and that his dealings with plaintiff were with him as president of the bank. In this evident misunderstanding of defendant as to the party which — 749 — advanced the money and supplies, to get at the true state of facts, we will consider the course of dealing 'between plaintiff and defendant. It appears that all negotiations were with plaintiff, and we nowhere find the di ectors of the bank consulted in the matter. No official of the bank, nor is there any creditor of the bank, except defendant’s wife, who asserts any right or title to the claim of the bank. Some of the directors were witnesses in this suit. Perhaps in the town of Mansfield, where this suit was instituted, all the shareholders, officials and creditors of the bank knew of the existence of this suit. Under the contract with defendant, Hicks Company, Limited, furnished him with supplies. These were furnished on the individual credit of plaintiff, and not on the recommendation of the bank. The contract for supplies was, in the ab - senee of any testimony to the contrary, we believe, an entirety. There is no intimation that the plaintiff was to supply from Hicks Company, Limited, the supplies of meat, bread, etc., and the bank the money. There is no ground for believing that the bank was to furnish the money and the plaintiff the supplies through other parties. We are of the opinion that plaintiff agreed to furnish both money and supplies, and that the account of defendant was kept at the bank for the convenience of both parties, and that defendants’ cheeks on the hank were protected by money specially deposited for this purpose by the plaintiff. It is true that the cashier of a bank is without authority to transfer, on the demand of the president, bank claims to him. In this case, however, the bank did not own the claims. Defendant’s account had been paid by the plaintiff, in the case of defendant’s dealing with the bank, by drawing checks on the same, which were virtually covered by plaintiff’s money, or it would be more correct to say, by deposits previously made by plaintiff. The bank, therefore, had no interest in the defendant’s account, and the transfer on the account to defendant is nothing more than a state - ment that the same had been paid by plaintiff, and- is evidence of the fact, stated by plaintiff, that defendant’s account was kept at the bank as a matter of convenience in his own name for the greater convenience of both parties, and that the cheeks drawn by defendant were against funds placed to his credit by the plaintiff. The whole case briefly stated is that the plaintiff agreed to furnish the defendant to a certain amount and deposited that amount in bank to his credit, against which the defendant drew as his necessities required. — 750 — Evidence was offered to show that certain items on the account were paid out for things that were not necessary supplies. If the defendant had purchased his supplies directly from the plaintiff, he would, in order to obtain a privilege, be bound to furnish only such supplies as are known as “necessary,” such as are usu'ally used in the cultivation and production of crops. But where money is advanced to purchase supplies, it would be unreasonable to require the party who advances the money to inquire into the details of its disbursement. In fact, if he places the money in bank to the credit of the borrower, he can not control its use. He can not, therefore, be held to a knowledge of the ultimate destination, and be required to direct its specific use. Lehman, Abraham & Co. vs. Godbery, 40 An. 219. But in this account there are two items of checks drawn to pay premium policies on the life insurance of defendant. These payments were made in 1893, under a prior agreement entered into with defendant. Plaintiff’s explanation that the agreement was to pay the premiums out of amounts deposited by Sentell & Oo. and some other small deposits, to credit of defendant, is unsatisfactory. These deposits were made in 1892, and on May 30, 1893, defendant owed the bank, or plaintiff, forty-five dollars. The premiums were paid on September 23, 1893, and June 27, 1893. It is certain that, with the consent of both parties, these premiums were paid out of the fund advanced to make the crop of 1893. No privilege exists for the amounts so paid. The notes for one thousand and fifty dollars, dated July 5, 1892,. and for five hundred and twenty dollars, dated September 7, 1892, aie not privilege debts. They were not executed for any advance made to the defendant in 1893. The evidence shows that the plaintiff was surety for the defendant with the Hicks Company, Limited. Some of the supplies furnished were paid for by plaintiff, and charged to defendant in the bank account. The balance, two hundred and thirty-seven dollars and seventy-five cents, the plaintiff has not yet paid. He has no claim against defendant for this sum until he shall have paid the same. Just prior to the issuing of the writ of sequestration .the defendant had entered into engagement with John T. Hardie & Co., of New Orleans, to ship his crop of cotton of 1893 to them. His agreement with plaintiff was to let him have his cotton to be shipped to the — 751 — Hicks Company, Limited. In anticipation of the shipment of the cotton to Hardie & Co. he had drawn two drafts on them. The agreement with Hardie & Co. is not denied. It was a plain violation of his contract with plaintiff, and was sufficient to excite his fear, and justify the issuing of the writ of sequestration, the safest and speediest remedy which he could invoke to protect his rights. INTERVENTION OF MRS. WILLIAMS. There seems to be no contention as to the amount due by the husband to the wife. Nor is there any contention as to the just value of the property given to the wife to the amount due her by the husband. The rules governing the revocatory action do not apply to the dation en paiement by the husband to the wife in satisfaction of her just claim. The facts essential to the validity of the dation are the just and honest claim of the wife against the husband; the just proportion of the value of the thing given and the wife’s claim, and the delivery to the wife of the thing given to her in satisfaction of her debt againt the husband. The law favors restitution to the wife and looks with favor upon the efforts of the husband to secure her just and honest claim against him. The fact that he is insolvent and embarrassed; that he is pursued by his creditors by harsh remedies can not be invoked to destroy the validity of the transaction. The wife, like any other creditor, is sustained in her vigilant efforts to secure her debts, and the husband can be excused if, finding himself in financial straits, affection for his wife and his duty to her and to their children impels him to secure her just claim, and to aid and assist her in all proper methods in that direction. The contention here is that there was no delivery of the crops to the wife. The property was as speedily and actually delivered as property of that kind can be. It was placed in the hands of a third party, who gave a receipt for the same. The District Judge reviews the evidence on the fact of delivery, and we think we commit no error in concurring in his findings on this point. Prior to the adoption of the Constitution of 1879, when to preserve the privilege as a furnisher of supplies it was necessary to record it, the sale of the crop before the recordation of his privilege — 752 — either defeated it or postponed it to those acquired since. But by Art. 177 of the Constitution of 1879, “ privileges on movable property shall exist without registration, except in such cases as the General Assembly may prescribe by law after the adoption of this Constitution.” The Legislature has not enacted any law requiring the recordation of privileges on movable property. The privilege is, therefore, without recordation, preserved to all the world. Flower & King vs. Skipwith, 45 An. 895. The intervenor acquired the property subject to the lien and privilege of plaintiff. Id. The judgment in favor of plaintiff will, therefore, be amended so as to avoid that part of it which maintains the sequestration on the unmatured notes at the filing of the suit, until suit should be filed to perfect the sequestration and to avoid that part of the judgment, also, which exempts from the enforcement of plaintiff’s privilege the crops sold to the intervenor in the dation en paiement. In other respects the judgment is affirmed. The judgment in favor of the intervenor is amended so as to order the delivery of the property described in the dation en paiement to her only after the satisfaction of plaintiff’s privilege as recognized in the judgment in her favor. In other respects the judgment in favor of intervenor is affirmed. It is therefore ordered that the judgment in favor of plaintiff and the judgment in favor of intervenor be amended in accordance with the views herein stated, and otherwise affirmed, defendant and the intervenors to pay costs of appeal.