Beauregard Furniture Co. v. Katz

CHARLES P. CLAIBORNE, JUDGE. This is a damage suit. The petition alleges that the plaintiff sold and delivered to Joseph J. Carbo sundry-articles of furniture for the price of $382, in part payment of which the said Carbo paid $185, leaving a balahce due of $197; that thereafter the said Carbo sold and delivered to Harry Katz "in bulk and out of the usual course of traded the entire contents of his premises 1225 Delachaise Street including all of the property and the merchandise purchased by the said Joseph J. Carbo from petitioner, for less than the sum of $80; that the said Harry Katz in purchasing said goods, wares, and merchandise did not exact any sworn statement from the vendor as to the amount due for said effects, and wholly failed to comply with the laws ■ of Louisiana relative to the purchase in bulk out of the usual course of trade, as was done in this purchase, With the full knowledge that the Baid goods so purchased by him from the said Joseph J. Carbo Were unpaid for, and that he therefore becomes liable to petitioner for the said amount; that the said Joseph J. Carbo purchased the said goods, wares, and merchandise so sold to the said Harry Katz on credit, and that he disposed of same out of the usual course of business with the intent to cheat and defraud petitioner, and petitioner is informed and so alleges that the said Harry Katz had full knowledge of Same"; petitioner further alleged that he had a vendor's privilege on said furniture, and he prayed for judgnent against said Harry Katz for $197. The defendant filed an exception of no cause of action which was maintained, and the plaintiff has appealed. [166] V» are of opinion that the petition dieclosea a double oauee of action, one under Article 2324 (2304) of the Civil Code, and another under Act 114 of 1912 p 133. Article 2324 reads as follow»: . "He who causes another person to do an unlawful sot, or assists, or encourages in the ccnmission of it, is answerable, in solido, with that person, for the damage caused by such act". Accordingly it has been held that where the master of a steamer fraudulently assists a debtor in removing bis property out of the reach of a oreditor, with a knowledge of the rights of the creditor, ha will be liable to the oreditor for the amount of his debt. 8 R., 428; 12 R. 20. It has also been held that where a purchaser of the contenta of leased premises, with a. knowledge that rent is due, removes the contenta,he makes himself liable for the payment of the rent. 2 A., 14. Affirmed in 30 A., 202; 139 La., 411; 47 A., 754; 43 A., 1082; 1 A., 80; 24 Cyc. 1267; 18 A & E. E. of Law p 350. But the oaae of Seelig vs Dumas, 48 A., 1494, ia identical with the present case. The Court said, p 1498» "Granting that they (thh contracta) evidenced án abao* lute sale as he (defendant), deolared them to have been, he knew (upon that hypothesis) that a large portion of the price which had been fixed between Theresa Hamilton and the plaintiff was still unpaid and stood secured as to payment by vendor's privilege, and. he deliberately and intentionally, with a view of benefiting himself and cutting off plaintiff's privilege, purchased the furniture, and withdrew it from plaintiff's pursuit xxx he purchased for $1180 and took possession of furniture on which there existed, to his knowledge, at the time of his purchase, a vendor's privilege in.favor of the plaintiff". Act 114 of 1912 p 135 ia entitled: ^An Act to define «"4 punish certain misdemeanors in trade and commerce, and xxx also to make it a crime for anyone tp purchase goods, wares. [167] or mercfcattiiae on credit and sell» hypothecate, or diepo8e of sene oat of the usual course of business, with intent to cheat or de&amd the vendor or seller; and also &c.". See*' 2 of the act reads as follows: ‘That whosoever shall purchase goods, wares, or merchandise on credit and shall sell, hypothecate, pledge, or otherwise dispose of same out of the usual course of business and with the intent to cheat or defraud the seller or vendor, shall he guilty of a misdemeanor, and on conviction thereof shall- suffer fine in the discretion of the Court and imprisonment not less than Biz, nor more than twelve months". Saa By that section it is made an unlawful act for any to purchase goods on credit and to sell the same out of the usual course of business and with the intent to cheat or' defraud the seller; and by Article 2324 of the Code any one who assists another to do an unlawful act is answerable for the damage caused by that act. Carbo certainly committed the ¿I'unlawful act denounced by the Section 2»yif the allegationSof the petition are true, and Katz assisted him. He is therefore answerable in solido with Carbo. Section 4 of the Act may be. confined, as contended by the defendant, to sales in bulk made by retail merchants. Bub such limitation is intended by Section 2. It establishes a misdemeanor "in trade and commerce" and applies to all wham-soever who shall purchase goods on credit and sell than out of the usual course of business with intent to defraud. The interpretation contended for by defendant would permit a person engaged in retail business to buy movable property on credit, an!* then sell it and defraud the vendor with impunity; in other words, what would ho criminal in one in the retail bueiness, would'be innocent in One 'not in that business. But what the law intended to punish is the nature e£>he orine mare than the quality of the individual aha-in guilt^ 22 The case of Dreyfous vs Cade, 138 La., 297, applies to a sale Jn the regilar course of business and devoid of the charge v of fraud* It -is therefore ordered tbat-thc judgment be reversed,and that the exception of no cause of action he overruled - ¿^defendant to pay costs of appeal.