The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-11-24

| J000 Es ktuR-Appe2l IfOm 0lxtu OlbbrlCt OJuEt,
| parish Of Orleans.
| In 1861 plaintiffs consigned to defendant sew
| enty-four boRshesds tobacco, which were sold by
| the latt er for account of plaintiffs in December,
1861, for $143 1888 Sc in gold, and account curren.
| thereof promptly rendered by defendant.
During the year 1861 plaintiffs drew on defend
ant their several bills, amounting in the aggre
gate to $S436 81, which defendant accepted and
paid out of his own funds and for which, with
| interest plaintiffs became his debtors. lmmedi
stely after the sale of the consignment as sfore-
said the defendant paid over the cash balances in
gold 10 Messrs. Watt, Given Co., as requested
by plaintiffs, to-wit: 1883 90. On 2lst Septem-
Der, 1863 plaintiffs wrote to the defendant object
ing to some of the items of the account, and
stating, :" Now we claim that you owe us the pre-
MUM the gold was worth on amount OF bills,
ss436 So; on account Of coin. $2l0 90; on &C.
count of interest balance $7S5 rs; total $9433 o."
plaintiffs petition alleges the difference in the
value Of gold and city currency at the date OF SAID
transaction fully thirty per cent. which on
said sum of ss436 So and the interest charge Of
s7S5 rs, makes the full sum of $2s6l 81, which
added to the $40 so erroneonsly charged for
cover this $3O9l 81 this suit has been instituted.
The court below gave judgment in favor of
plaintiffs and defendant has appealed.
plaintiffs contend that their factor, Jno. E.
King, could not apply the gold proceeds of the
tobacco to the extinguishment Of his account
against them for bills drawn on said consignment
| in 1861; that as their consignee he should have
allowed them the premium OF thirty per cent. IN
favor of gold in settlement of his said account,
and that he should not have charged them two
and Q half per cent. commission on the various
bills drawn by lnem against their said consign-
nent-
Plaintiffs contend that their factor paid those
bills in currency. and in his account charged them
as paid in gold or applied their gold to the pay.
ment of his account.
There is no positive evidence in the record to
establish the allegations of plaintiff. The bills
drawn by plaintiff in 1861 could not have been
paid in United States treasury notes, because they
were not then in circulation in this city. The act
authorizing issue of legal tender notes only passed
25th February, 1862.
There is no allegation or proof that said bills
| were paid by drawee, defendant, in Confederate
notes, and we cannot presume that the parties
before this court dealt in an unlawful currency.
Ii is true the record shows that the banks in
in New Orleans suspended specie payments on
| 18th Sc ptember, 1861, excepting the Southern
bank, but il does not follow that defendant could
not pay the various drafts of his consignors in
lawful money without doing 80 through the banks
1t seems the various bills accepted and paid by
defendant were given in part payment for the
tobacco which plaintiff bad bought and shipped TO
Texas Plaintiff must have received lawful
consideration for the bills, and what difference
was it to them how the drawee paid the payee
thereoiE
The bills were made payable in dollars and not
in any particular currency.
Now if plaintiffs had desired to ascertain posi-
lively in what currency the bills were paid by the
defendant, why did they not get the evidence Of
|
how be was paid and in what currency?
Defendant occupied the position of factor to-
wards the plaintiffs and also the position of cred
tor for the amount of bis individual funds ad
vsnced to play plaintiffs bills.
What was the relation of the parties to each
other on the Sth December, 1862. the day the con-
Segment of tobacco was soldg Plaintiffs were
owing the defendant the amount Of money he had
advanced for them, and interest thereon. They
were not owing him the Illegal charge OF two and
a half per cent. commission on the bills drawn
against the consignment IN his hands.
On the other hand the defendant was owing the
plaintiff the full amount Of the net proceeds of
| the sale of the tobacco.
At once, by operation Of law, the entire indebt-
edness of plaintiffs to defendant became extin-
| eushed by compensation and defendant was only
owing the plaintiffs the balance due out of pro-
ceeds of said consignment. Compensation only
extinguishes the amount of lawful Indebtedness of
plaintiffs 10 defendant in lawful money. Gold is
lawful money of the United States, and an indebt
edDess in dollars can be compensated by coun
| Ter indie btedness for gold.
At the time the bills were drawn and delivered
to the payee, specie was the only legal tender of
the United States. In the absence Of positive
evidence, we must presume that the defendant
paid those bills in lawful money. and plaintiffs be-
came indebted TO him from the time Of the pay
| ment thereof.
We think, then on Sth December 1852, all de-
PENDANTS lawful claims against plaintiffs became
extnguished by compensation, and that defendant
then occupied the relation of factor towards
| pihlnlDs, OWING tneu only IuI Inc DhiduCc Vi the
proceeds of the tobacco.
Defendant seems to have acted faithfully fsr
his consienees. His sales seem to have given
satisfaction, and he paid over the 1853 % in gold
| promptly to Messrs. Given, Watts u Co., at the
request of plaintiffs.
Indeed, plaintiffs were very late in raising any
objection TO defendants account current rendered
nearly nine months before.
We do not think that the plea OF usury set up by
defendant applies to this case.
We regard this action OF mandate not
prescriptable in three years as an open account
Ten years is the prescription against such de-
maud-l7 A, 2i6, and the authorities there cited.
Under the circumstances OF the case We believe
that defendant is only indebted to plaintiffs
$2l0 80, the amount of the illegal charge made
by him for commissions on plaintiffs bills.
Ii is therefore ordered and decreed that the
Judgment of the court below be avoided and
snDulled, and proceeding now to give such judg
ment as the court should have rendered in this
case, it is ordered, adjudged and decreed that
plaintiffs have Judgment against defendant for
$2l0 80, with five per cent. interest thereon from
Sth December, 1862. and the costs of the court
below; plaintiffs to pay the cost of this appeal.
Opinion delivered by Associate Justice WILEY.
ConcuTred in by Associate Justice Howell though
not asserting to all the views expressed.
Associate Justice Tsaferro delivered dissent
ing opinion in this case.
BYA J. HOWELL.
No. 1871. B. Lee, appellee, vs.. Levi Hubbell,
appellant.
Defendant Hubbell having obtained Judgment
on a note made by plaintiff Lee, issued execution
thereon; when the latter enjoned the writ on the
grounds that " since the judgment was rendered
he had discovered evidence that the note was long
ago extnguished and paid, and that he could not
have discovered such evidence before said judy
ment was rendered, with the greatest diligence on
his part"
motion was made to dissolve the Injunction
on the face of the papers, which was properly
overruled. The defendant then pleaded general
denial claiming damages allowed by Law and
500 special damages for lawyers fees and from
judgment perpetuating the injunction he has
appealed.
For reason assigned and authorities cited. it il
therefore ordered that the Judgment appealed from
be reversed. IL is further ordered that the in
junction herein be dissolved and that the defend.
ant, Hubbel recover of Thos. B. Lee and Bobt.
H. Bowles, in soliso, eight per cent. interest on
$500, from the 25th OF June 1866. to date of this
judgment, and the sum of SIPS with costs in both
| courts.
BY ASSOCIATE JUsTIcE..w. G. WILEY.
No l3ss-Levi & Nsvra Solomon Levy
| ixth district Courf