New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-06-01

propFiated to that purpose, ana tne pam
/ tiff has received his prOpOrtionaUS share U
the benefit claimed therefrom II the protec
ton of his interests ana properly; r. =,
Further. tbis respondent says that If thu
| nIaintifF is not bound to pay license tai
| To fine CITY of New Orleans, as set forth II
| the petition, he was, at least, under 8
| natural obligation to contribute his quOtS
| to fine support of the municipal government
| from which he derived protection; and that
| under such circumstances, an action viii
not lie to recover the amount or amounts
| alleged to have been paid, or any part
| thereof even though such payments were
made under protest or agreement
Moreover, any order, judgment or decree
of the court. requiring the return of the
money claimed, would divest a vested
right, impair and destroy the obligation Of
a contract and violate section ten, article
one, of the constitution of the United
States, section one, fourteenth amendment
to the constitution of the United States
section twenty, article six, constitution OF
Louisiana, and adopted in 1879, article los
constitution of said State, adopted in 1915,
article lO5, constitution of said State
adopted in 1864, article ITO, constitution
OF said State, adopted in 1863
This respondent further and specially de-
MES that said plaintiff by protest, pre-
tended agreement, or otherwise, has had
reserved to him the legal or equitable right
to recover back any portion of the money
admitted or shown to have been paid, and
specially and particularly denies the exist
ence of any protest or agreement made by
the authorization, or with the consent of
said city, or in any way or manner binding
upon her.
And this respondent further says that if
plaintiff ever had any right to recover from
defendant the license taxes referred to in
the petition or any portion Thereof, which,
however, is denied, that such right has been
sold, assigned, transferred and conveyed to
another, unknown to respondent, and under
circumstances to render the pretended
claims set forth in plaintiffs petition, under
article 2447, Civil Code, void and without
any fierce or effect.
Wherefore respondent prays for trial by
jury; that plaintiffs petition may be dis
missed, and that judgment may be rendered
in favor of defendant and against plaintiff,
with costs and general relief in the premises.
Seventh District Court.
Joseph Hoy g. Co. VS.. George d. Hite, ct
al.-Joseph Hoy & Co. sued George D..
Hite and the late commercial firm Of Moran
& Noble, for $l9I6; representing that they
(plaintihs1 were on the fifth of May, 1870,
creditors of the steamboat Bart Able and
owners in the said sum of $l9l6, and the
said debt was contracted while w. G. Har-
rison was captain of said steamboat on De-
cember %, 1869, and January %, 1870, for
two drafts, one for $2067 IS, at sixty DAYS
date; the other for $500 at ninety DAYS
date, paid at said dates for the accommo-
dalton of, and at the request of J. c. Douty,
the drawer, and w. G. Harrison, captain of
said steambo boat, and also at the request of
the owners Of said steamboat, said drafts
having been drawn by said j. c. DOuty to
pay for boilers for said boat, and were so
drawn by arrangement between said DOuty,
Harrison and plaintiffs. That on Nav s.
1870, George D. Hite and Moran & Noble.
entered into written agreement, whereby
they jointly bound themselves to protect
and pay all debts and claims of whatsoever
nature and kind due by the said steamboat
Bart Able, during the captaincy of said
Harrison, by virtue of which agreement
the said defendants are bound for the said
sum of SI9l6.
The court, in passing on the case, saws:
The agreement sued on is not in fact "a
stipulation pour GUtrUi;" it has on its face
no clearly defined sense; it is ambiguous,
and its purpOrt or terms would not by
themselves authorize the judge to say with
certainty that it comprises the debt due the
plaintiffs, or was given to indemnify them.
The evidence, however, shows exactly what
the contract was. 1t was a guarantee or
warranty in favor of a purchaser of a
to indemnify him, not the plain
titfs, against debts and claims affecting the
thing he was purchasing, and which might
be the cause of his possession being dis
turbed, or which he might be Obliged TO
pay. 1t was not given to plaintiffs, or in
tended for their benefit. If in anything it
related to them, it was a warranty against
their demand.
The plaintiffs have not accounted for their
possession of the document, which certainly
does not belong to them. 1t belongs to an
other, who is not party to this suit, and
whose consent to its being used by plain
tiffs is not shown. Indeed, even if such
consent had been given and proved, il
would not avail the plaintiffs, since they
did not succeed to the Obligee's title, which
the warranty was made and given to pro-
tect.
Judgment for defendants.
Widow and heirs of Eugene Hacker VS..
Robert Walker and f. Hagan.-Petitioner
that the late Eugene Hacker
furnished and delivered to Robert Walker.
to be used and employed in building a house
and appurtenances for the said F. Hagan,
to the amount of $246; that defendant,
when applied to, refused to pay the same:
wherefore plaintiffs brought suit, and
claimed a privilege and lien on the building
Of Hagan.
uO COuIt5 III Als OpAulOu, says Inc 6XlSG-
ence of the sub-cOntTactOr's preference on
Lhe fund due by the owner to the contract
Dr, and of the contractors and sub-con-
tractors privileges IN rem on the building
depend in some particulars on different
conditions, and to that extent are separa-
BILE, and the preference may exist without
the privilege; but they both depend upon
the principal condition, that some amount
must be due by the owner to the contractor
1T the moment of service of attested &C.
,Ount or of suit. The privilege on the
thing may be lost, while the preference on
,he fund may still subsist, but if privilege
exists the preference also exists, and this
.Or the reason that the privilege can not
exist unless there is something due by the
owner to the contractor. An, 100
An, 4S0.
In this case the privilege on the building
lid not exist, because the contract between
he owner and principal contractor was for
more than $780, and there was no evidence
# it having been recorded.
Neither has the plaintiff secured a right to
De paid out of the amount the owner prom
sed to pay for the work, for his attested &C
'Ount was served too late. The building had
Deen finished, and the owner had paid all
q contracted to pay the builder before the
plaintiffs attested account was served. !
civil Code, 2772. Plaintiffs demand against
dagan dismissed.
Treasure TrOve.
Here is a sensation from the Madison
TO3t,,,101