ROBERT PATTERSON & Co. v. LEAKE and Tucker.

A factor is not allowed to charge two and a half per cent for a cash advance and eight per cent interest.

A planter who orders supplies to be shipped to him by a factor, without ordering them to be insured, must bear their loss, unless he can show that it was customary for factors to insure goods so shipped.

A factor who receives a promissory note in settlement of a debt due to him, will not be allowed to charge a commission for endorsing the same. But if the note had been negociated for the drawer's benefit through the factor's credit, a commission would be allowed for the endorsement.

A

PPEAL from the District Court of St. Mary, Voorhies, J. W. C. Dwight, for plaintiffs. Splane and Cook, for defendants. The judgment of the court was pronounced by

SLIDELL, J. The action is upon a factor's account, composed of charges for plantation supplies, commissions for endorsing and advancing, commissions which would have been earned upon sale of the defendants' crop of sugar and molasses, if the same had been shipped to plaintiff's at Philadelphia, as it was alleged that the defendants had agreed to do. The defendants answered by a general denial. They also admitted the agreement to ship their crop of 1846 and 1847; but alleged that the plaintiffs were to furnish vessels at a proper time to take the sugar and molasses; that they failed to do so; in consequence of which it was detained a long time at the plantation, at much expense and inconvenience, and the defendants were at length obliged to ship it themselves to New Orleans. For the injury and loss thus alleged to have been sustained, the defen

*Hon. GEORGE EUSTIS, C. J., was not present during this term.

v.

PATTERSON dants claimed damages by a plea of reconvention. There was judgment for the plaintiffs for a sum less than they claimed, some of the items of their account being rejected. The plaintiffs have appealed.

LEAKE.

The charge for cash advanced to purchase plantation supplies for the defendant, is sustained by the evidence. It was reserved in a previous settlement of accounts, upon being then disputed, and plaintiffs have a right to claim it now. We think, however, the plaintiffs are not entitled to a commission of two and a half per cent for this cash advance in addition to eight per cent interest. See Lalande v. Breaux, ante p. 505. The same remark applies to another item in the account of $112 19.

The second item, which was for plantation supplies, the defendants contest, upon the ground that the steamer in which they were shipped at New Orleans, for their plantation, was lost on the voyage with the goods, that the plaintiffs had neglected to effect insurance, and must bear the loss. In the letter ordering the shipment, we find no order to insure, nor is it proved that such was the usual course of dealing between these parties, or between planter and factor generally. The objection, therefore, cannot be sustained.

The next item is a claim of commission of two and one-half per cent for endorsing a note of $4479 33, drawn by the defendants, at one year, and which was in settlement of the balance due to the plaintiffs. If this note had been in point of fact negociated by the defendants, with the aid of the plaintiffs' endorsement, we would have allowed the commission as a fair equivalent for the use of plaintiffs' name and credit. This is not shown; and, on the contrary, it would seem the note was delivered to the plaintiffs, and held by them until its maturity. See Lalande v. Breaux, ante p. 505.

Another item is a charge of commission upon sale of a sufficient amount of sugar to pay the note, which, it is said, defendants promised to ship to the plaintiffs, to be sold, and proceeds to be applied to take up the note. We had occasion to consider, in Packwood's case, and in Lalande's case, the rights of a factor, to charge such commissions as he would have earned, on the sale of the planter's crop, where the planter has promised to ship and violates his engagement. See 2d Ann. 625; ante p. 505. But, in the present, there was not a positive engagement to ship. The defendants, under the written agreement, reserved the right of selling in Louisiana, if they thought proper, instead of shipping to Philadelphia, to plaintiff's house.

A similar item is charged for not shipping the crop of 1846, but, in our opinion, the plaintiffs are concluded as to this item, by the settlement made in 1848.

Judgment affirmed, with costs.

JOHN B. THE ALL v. J. E. LACEY, Tutor, &c.

Where a mother and son verbally contract a partnership for planting, and they live together a long time until the death of the mother, it will not be presumed that they kept regular books of account, nor will the son or his heirs be held liable for not having done so.

A

PPEAL from the District Court of the parish of St. Mary, Overton, J.

W. C. Dwight, for plaintiff. Henry Gibbon, for defendant. ment of the court was pronounced by

The judg

PRESTON, J. This is a suit of old standing, commenced in 1840 by the plaintiff for the settlement of a verbal partnership between his mother and brother, commenced in 1829 and terminated in 1839, by the death of the mother. They agreed, as proved by a witness, each to put in all their property and funds, and that the son was to be the acting agent and controller of the whole concern, and that the profits of the partnership should be equally divided between them, share and share alike. They owned adjoining tracts of land and each had negroes; they joined their forces for the purpose of cultivating the whole, and were to divide the crops and profits. They worked together from 1829 to 1839, when both died, and this suit is between their heirs to settle the concern.

The partnership was contracted verbally, and, as was natural between a mother and her eldest son, was conducted loosely. We have no accounts between the parties; nothing but verbal testimony of the most indefinite character as to the profits and their appropriation.

In this state of the case, the district judge, in 1844, investigated it with very great care, and liquidated the claim of the plaintiff at $1942 95. His calculations, reasoning and conclusions, appear to us reasonable, and to have approached the truth as nearly as possible. Nevertheless the plaintiff appealed, and the result at which the judge arrived was so different from the extravagant claim of the plaintiff, that this court thought it best to remand the cause, and recommended its trial by a jury. They found a verdict for seventeen hundred and twenty-six dollars and fifty-seven cents, with which the district judge was satisfied, and rendered judgment accordingly in favor of the plaintiff. He has again appealed.

There is no definite evidence which enables us to say that the judgment should be increased. The evidence given on the last trial is not materially different from that offered on the first trial, and the careful investigations of the judge on the first trial, based upon the evidence, satisfies us that the present judgment is about correct.

The plaintiff complains that it was the duty of the defendants' ancestor to have kept regular accounts, and of the defendants to produce them. It is very probable that the mother and son kept no regular accounts. They lived together; were in daily intercourse, and were possibly satisfied with verbal statements as to their profits, and mutually agreed as to the constant appropriation and use of them. Pecuniary demands daily occur to the mother of a family as well as to a son, and these are the principal objects of our revenue; they greatly diminish the profits of our property and labor. The partners died within a short time of each other. The plaintiff was the representative of the mother; her son was represented by the tutor of his minor child, when this suit was instituted, within a year after their death. It is not probable that important papers were withheld that came to the parties in their fiduciary capacity.

The equality of the partners' property at the commencement, and great disparity at its termination, certainly gives some countenance to the large claim of the plaintiff. But then it is proved that the son was, at his death, largely in debt. He may have made profitable speculations. He may have received means from - other sources than the partnership.

Any property owned by the widow Hannah H. Theall individually, and remaining in kind, belongs to the parties, and its partition is not barred by the judgment in this case. The suit has not been conducted as one for the partition of property admitted to be common.

THEALL

v.

LACEY.

THEALL

V.

LACEY.

Interest might properly be refused, as the claim of the plaintiff was not liquidated. The application for a new trial was, therefore, properly overruled.

It is decreed, that the judgment of the district court be affirmed; and that the appellant pay the costs of this appeal.

5 550 113 1016

JULIE DEROUIN v. FRANCIS SEGURA.

An inventory is not such an instrument as may not be contradicted by parol proof, even where the party who seeks to contradict it was present at the taking of the inventory, and signed it as one of the witnesses. The notary who took the inventory is also a competent witness to prove that notes included therein had been previously paid.

AP

PPEAL from the District Court of St. Martin, Voorhies, J. A. S. Magill, and T. C. Nichols, for plaintiff. E. Simon, for defendant. The judgment of the court was pronounced by

ROST, J. The object of this suit is to recover a balance alleged to be due on a note originally made by the defendant, to the order of Eloy Segura, the first husband of the plaintiff. The defence is, that this debt has been extinguished by novation, the amount of it having been included in a note, subsequently given by the defendant to Eloy Segura, which has been paid since the death of the latter. The defendant, who can neither read nor write, has adduced the testimony of the two subscribing witnesses, to his ordinary mark on the last note, and also of another person, who was present when the note was given. The testimony fully sustains the defence. The district judge being of opinion, that it did, gave judgment against the plaintiff, and she appealed.

When the inventory of the succession of Eloy Segura was made, the two notes of the defendant, being found among his papers, were included in it. This inventory bears the ordinary mark of the defendant, who was acting in the proceedings of the succession, as the under-tutor of the minor heirs; hence, objections were made by the plaintiff's counsel, to the admissibility of the parol adduced, on the ground that the defendant could not, in that manner, contradict the written act signed by himself, after the death of Eloy Segura, by proving an agreement between himself and the said Eloy prior to his death; and that the notary, who was one of the witnesses examined, could not be permitted by parol, to contradict, add to, or take from the inventory made by him; and that the object of said testimony was to contradict and annul a portion of the inventory. The judge overruled these objections, and the plaintiff has brought the question before us by bills of exception.

The objections were properly overruled; the evidence was admissible to show the consideration of the note, and that it had been extinguished by novation or otherwise. The testimony did not contradict the note, nor did it add to or take any thing from it. The acts which cannot be contradicted by parol evidence, are those which contain contracts, and create mutual obligations; an inventory is not such an act; the notary was bound to include in it all the important papers found in the possession of the deceased. If, among the notes inventoried, there were any which did not belong to the succession, the notary was without authority to decide the question of ownership: his functions were purely ministerial, and cannot conclude the legal rights of the defendants, notwithstanding his presence at the taking of the inventory.

The judgment is therefore affirmed, with costs.