New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-06-14
NEW ORLEANS SCHOOL OF
MEDICINE.
DECISION OF JUDGE D1BBLE
AN INTERESTIN CASE


Medicine VS.. the New Orleans Merchants
Mutual Insurance Company ct ais, Judg,
Dibble yesterday rendered Judgment il
favor OF plaintiff. In his opinion, which
owing to the interesting points at issue W,
publish in full. he reviews the case as fol
lows: s
This action is instituted by DR., Samue
Logan, claiming to be the dean of the fac
ulty of the New Orleans School of Medicine
corporation organized on April 8, 1856
under the general act relative to incorpora
tlOns. The School of Medicine represents
that on the fifth of Auguse, 1865, the said
corporation made an agreement with the
Merchants Mutual Insurance Company OF
New Orleans, wherein it was stipulated
that the School of Medicine should have the
| privilege OF purchasing certain property de-
scribed in the agreement on file, situated on
the corner of Common and Villere streets,
in this city; this privilege to purchase to
exist until the twenty-fourth of June, 1870:
the price fixed was $4,000.
The petition moreover represents that a
member of the corporation, acting in its
behalf, made demand upon said insurance
company on or before the twenty fourth of
June, 1870, for q compliance with that
agreement, and at the same time rendered
to said insurance company the amount of
money stipulated.
The plaintiff then calls attention to a suit
| instituted in this court on the eighteenth of
May, 1870, by Samuel Chopin ct ais.
against the said insurance company, in
which, suit writ of Injunction was issued
at the instance of the plaintiffs therein,
| prohibiting said insurance company from
making the act of sale in compliance with
the agreement beforesaid.
That suit is offered in evidence. 1t was
brought by Drs. Samuel Chopin, Cornelius
Beard, ID. w. Brickell, and Charles Z. Fen
ner, Esq, claiming to be the sole heir of his
| father, the late DIR. E. d. Fenner. They
claim to have been among the original
founders of the New Orleans School of Me-
dicine; that the New Orleans School of Medi-
cine, as corporation, had become extinct,
and that they, as the remaining members of
the original corporation, were the owners of
the property of the corporation, and entitled
| to the benefits of the agreement between
the insurance company and the School of
Medicine referred to. They represented that
certain persons, usurpers, claiming to repre-
sent the extinct corporation, had made de-
mand upon the insurance company in the
name of the corporation for compliance
with the said agreement. Thereupon they
obtained writ of Injunction as above
stated.
On the fourth of June the School of Medi-
cine, now suing, filed petition of interven-
tlon in that suit, in which the allegations in
this suit substantially were set forth. 1t
was insisted by the intervenor that the
School of Medicine is a corporation still in
existence, that the contract with the in
surance company was still in force, as be-
tween the two corporations and that the
School OF Medicine, represented by the Off
GERS claiming to be such, was entitled to the
advantages arising under said contract.
The School of Medicine, as intervenor,
prayed to be declared entitled to the right
n ntAnan fln
the property in dispute.
On the twenty-ninth of June the plaintiffs
in that suit moved to have it dismissed,
and an order was rendered accordingly. BY
this action the demand of the intervenor
fell.
The petition in the present suit charges
that as soon as the aforesaid plaintiffs in
suit No. rs had caused their action to be
dismissed, thus dissOlving the Injunction
against the insurance company and defeat
ing the demand of the intervenor, that the
said insurance company executed an act of
retrocessiOn June a. 1870, by which the
property aforesaid was conveyed to the said
Chopin and others, who claimed in that
act to be representing the New Orleans
School of Medicine, Incorporated on the
ninth of April, 1856
The testimony and documentary proof
offered show this state of fact
The New Orleans School of Medicine was
organized as aforesaid. The original found
ers advanced individually certain amounts
of money to start the college. They OBJ
tanned individual subscriptions to cOnsid-
cradle amount from citizens of the city and
State. They obtained aid from the State of
Louisiana to the amount of $4,000. Out of
the receipts of the college, and out of these
subscriptions and donations of the State
the amounts advanced by the individual
incOrporators were returned to them.
The school was regularly conducted from
the period of its organization until the insti.
tuting of these suits. The Merchants Mu-
tual Insurance Company, the defendants,
held mortgage upon the property de-
scribed for $4,000
The note fell due. Action was instituted
thereon, the mortgage was foreclosed, the
property was sold, and the insurance COM
Dany bought it.
But as the gentlemen who were then en-
deavoring to conduct the school made rep
resentations to the insurance company that
they would be able to repay the amount,
the company entered into a contract with
the faculty of the school, by which they
bound themselves, at the expiration of five |
years, to sell the property to the school |
upon the payment of $4,000.
The School of Medicine was to retain pos |
session of the property, pay an annual rent
and all the expenses of insurance taxes and |
repairs.
This act of retrocession was to be executed |
on or before June "a, 1870.
1t seems from the testimony and the |
minutes of the school that, in anticipation
of the expiration of the five years, they
made arrangements to borrow the amount |
necessary to pay the debt to the insurance
company, and made demand upon its presi-
dent to comply with the agreement The
insurance company, through its president,
it's willingness to execute the
nOtarial act required. 1t was in violation of
the purpose thus expressed to the presi-
dent of the insurance company that the
other claimants to the property, Chopin
and others, obtained the injunction as afore-
said.
The president of the company states in
bis evidence that it was the desire of the
company to convey the property to the New
Orleans school of Medicine, and that in
making the act to Chopin and others, he
the terms of the contract between the in
,urance company and the School of Medi-
zine, and was in fact making a conveyance
)t the property to the New Orleans School
If Medicine.
The first question to be determined is
whether the corporation known as the New
Orleans School of Medicine has become
extinct.
The statute of 1855, relative to the forma-
ion of corporations for literary, scientific
IT charitable purposes, provides that any
lumber of persons exceeding six may in
corporate themselves upon complying with
he forms prescribed. Accordingly this
was formed April 9, 1856. Ten
gentlemen, members of the medical pro-
ession, declared, before notary, their de-
IRE to avail themselves of the statute and |