Baird v. Livingston

Bullard, J. The history of the, present controversy may be learned by referring to the case of the same plaintiffs, against Parker, (4 La.,) in which they sought to recover of Parker, the assignee of Elkins, upon the order given by Livingston to the agent of Baird, their ancestor. Having failed in that action, they instituted the present suit against Livingston, relying upon the order given by him, or delegation of a part of the debt due by Parkins, as evidence of an existing debt still due to them. The order itself is not produced, but we think was sufficiently accounted for. It seems to us clear from the evidence, that it never was intended as a substitution of a new debtor,- só as to' operate a novation. It was rather a conditional appropriation of a particular fund belonging to the drawer. The case therefore, upon the merits, presents two questions : 1st, whether Baird or his agent did any thing, or neglected to do any thing by which Livingston was discharged, or put in duriori casu; and secondly,’ whether the present action is barred by prescription. I. The order was accepted according to its tenor, but the amount never was received by the acceptor, in consequence of the insolvency of Parkins, the debtor. The precise period at which Par-kins became insolvent is not shown, but it appears to us clear that Livingston lost nothing in consequence of any negligence of the’ holder of his order. The fund out of which it was to- be paid became unavailable without the fault of Baird, and it would have been equally the loss of Livingston, if the order had never been given. "' * [185] II. The prescription of five years under the article 3505, of the Civ. Code, does not in our opinion, apply to the present case. The order was not an absolute one for the payment of money, hut was drawn conditionally upon a particular fund. As it relates to the prescription of ten years, it is to be remarked, that it could only begin to run from the time the bearer failed to recover the amount, in consequence of the insolvency of Parkins. Baird had no direct action against Parkins, and consequently was without any other means of establishing his insolvency than by prosecuting the acceptor. It is not therefore shown, that ten years had elapsed, within which Baird had a right of action against Livingston, without prosecuting it; for until the failure to obtain payment out of the fund was shown, his action was suspended. But the counsel for the appellant contends that the record does not contain sufficient evidence of the facts assumed by the plaintiffs ; that the record in the case of Baird v. Parker, was not in fact given in evidence, though it was agreed it might be, subject to all legal exceptions } and that the defendant had no opportunity to point out and insist upon any such exceptions. We fihd in the record the expression that the record in that case is admitted, thereby making it a part of the written evidence. The party might have insisted upon its production on the trial, but not having done "so, we see no objection to the judge’s becoming acquainted with its contents as a part of the evidence upon which he was to decide, without insisting ex arbitrio upon the production of a copy or of the original, by inspecting it in an adjoining room. It remains to inquire whether the judgment ought to be reformed according to the prayer of the appellees, so as to allow interest from the time the debt of Parkins fell due, it being for the price of slaves. The argument is, that the order was evidence of a transfer to Baird of a part of a debt which bore interest, and that consequently the holder is entitled to recover that interest from Livingston. This argument would carry the plaintiffs too far; for if there was a transfer of a part of the debt in any legal sense of the word, then Livingston would not be held to warrant the solvency of the debtor. But we regard the contract between the parties afe less an assignment of a part of the debt, than a contingent order to pay out of a particular fund when received. That [186] fund, if received, would have consisted of the principal of Parkins’ debt, with the interest which may have accrued, but Baird would have been authorized to receive only $1,400. We think the court did not err in allowing interest only from judicial demand. Judgment affirmed.