New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-05-24
the cotton sneculation was at an

| Struggled from Texas. Pending this actor
Yorke telegraphed to Philadelphia ordering
| the stoppage of the payment of the draf
| given to Gonnaty, who, upon presentation
| of the same, was unable TO obtain his
| money.
| The government not being able TO prove
| anything concerning the Illegal shipment OF
the cotton, released it to Yorke, who sold il
and paid the entire proceeds to Cook. and
| ignored the draft given TO Connatv. That
person subsequently demanded payment OF
the draft from Yorke, which was refused
and hence suit was instituted
In his opinion, Judge COllens says:
Passing over without discussion the diff.
| culties in the evidence againse the theory
of defense. consider that the most favora-
| bic view which can be taken of that theery
would present this question: lis the debtor
of commercial firm discharged by the
! Judgment of his whole debt to two of the
| members of the creditor firm, when pre-
| viOus TO that Judgment, the debtor had
| given his draft or check for a portion of the
debt to a third member: when also. that
draft was drawn in favor of that third
member, individually; when. at the time
of payment the draft was still outstanding
and was in the possession of the third
member: when the partnership was limited
TO the single adventure that created the
debt, and the third member held the draft
as representing his share at least of that
adventure, and the debtor knew of and
recognized the third members right to that
share; and when making the payment. re-
gardless of his outstanding draft the debt
or put IL in the power of one of the other
two partners TO abscond with the whole
fund.-"
| think this question must be answered in
the negative. The general rule that paw
ment TO one party is payment to the firm,
Is not without its exceptions. Notice. ex-
pressed or clearly implied from one of the
partners, not to make the payment would
suspend the rule. So other circumstances
may prevent its operations as it certainly
was prevented in this ease BY drawing
the draft the defendant voluntarily sub
jected himself to the liabilities. while he ac-
CURED the rights of makers of such obliga-
tons. He added the advantages and disad-
vantages of this relation to his liability and
rights as factor of the creditor firm The
giving of the draft to the third member. al
the time and in the manner shown by the
evidence, was valid as against the creditor
firm so that the member who received il
had right TO regard himself as conclusively
protected against any payment of his net
share to his copartners. The only lust
cause for delaying payment of the draft
viz: the seizure of the cotton, was speediIv
diatelv taken up by payment to the holder
The factor had no more right under the
circumstances, as they then stood. to resist
the payment of his draft than he would
have had to demand back the money if the
draft had been paid, or than if he had adj
vanced the cash instead of draft. He
had implied, if not express cause for he
ieving that the firm had consented to the
third member taking the draft individually.
and hot haI , x III,
and had, on settlement or otherwise, be-
come the separate property or security of
the partner who held it-a very common
circumstance, the mere possibility of which
was sufficient to put the defendant on his
guard, and require HIM to make dilirent in
quiry. Even the form and tenor of the
draft III being drawn in favor Of the plain
tiff individually was the acknowledgment
of notice of the existence of some such
separate title or equity. Nevertheless, he
chose to pay the total proceeds OF the cot
ton the very day it was released to a mem
Der of the creditor firm without recurring a
return OF the draft or giving any notice to /
the plaintiff. Hence, If the payment of his |
own written obligation must result ia a loss
to him, the defendant must ;mpute that loss !
to his own or agents imprudence.
The plaintiff, having received the draft. |
which was more than sufficient 10 satisfy /
us whole claim against his copartners was !
secure against the very loss this impruGeuce |
mas caused The sudden and reckless act |
If the defendant, if effect We're given to it.
against the defendant, would destroy the /
security so held, reverse the existing and
plainly apparent relation between the par-
les at the time, revive the debt due by the
wo other partners to the plaintiff tboUob
hat debt had been extinguished by the civ
ng of the drafts, and would transfer the
Oss following the imprudent payment from
he defendant, who committed the irnnru
Ience to the plaintiff. whose whole course
vas notice that he opposed IT, The de.
endant. or his agent could not but be
ware of his attempt to treat his Outstand-
ne draft as nullltv. The plaintiffs inter
at IN the draft was equal to One-third of
l3,9O9 -, amount OF net proceeds of Joint
overture. The surplus would have ac-
rued to the other two partners. The paw
tent 10 them or their agent was certainly /
aid as against their interest in the draft. |
The defense, consisting in the allegation
misrepresentation and error though !
elped by one Of the witnesses il refutfd |
Y, first, the presumption arising from the
cry act of giving the draft: second the
nprobability of its having been given with
ut an order, or at least receipt TO one not I
rowing any title. and whom the witness
retended to have then and there sns- T
ected; third by the direct testimony sHs- c
lining the presumption of the existence of t
! order; fourth, by the fact that for one
ird plaintiff really had the right it is said
, asserted: wherefore he can not be
larged with misrepresentation; fifth. bv
re surrounding circumstances, such as the 7
essence OF the cOnslgnOrs agent. who was
personal communication with defendants
,ent and was doubtless consulted.
Judgment for plaintiff for S4636 fl, with !
terest, costs. etc. :
Eighth District Court. n
The case of the State vs. the Mexican Il
llf Canal Company was called up again +
stcrday, but had again to be postponed, t.
ilng to the absence of witnesses, 1t is c
W fixed for next Monday. =,
United States Circuit Court.
In the case of X. Paggio VS.. the New Or y
Ins Insurance Association the case hayino r
ne to the jury, they returned a verdict to o.
: effect that the plaintiff recover from de- 81
ldant the sum Of 5000 for the insurance ls
the hull OF the vessel, the sum of $500 | Il
gold COM for the freight the vessel con- II
ned. together with interest on the two d'
cunts, as prayed in his petition: and the u u
ther sum Of $4,000 for damages. with in pl
est at the rate Of five per cent from the al
-e OF judicial demand. The amount of -.
verdict IS Sl1.5O0. a Judgment of the ia
~ vas Ioh,ttlcu III accordance with the IT
egOing verdict. by
- Commissioner WeIler's Court. H.
lie steward and steWardcsS Of the shin Dc
dy Blessington sued the vessel upon an
all clam. The sum was promptly paid. no
there Is good reason to believe it would 80
re been without a resort to court.
George Bergerman, second steward of the tn
amship Frankfurt who had been com tn
ted to the Parish Prison in default of fP5Il
to appear for examination. succeeded be-
ter1av in tin1inn SurntinS RI,+ | TN