New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-12-17

agreement entered mo was forever. WA1la
| the conditions thereof were made TO depend
solely on the exercise Of the will Of each.
| l. That the essential condition thereof
was impossible OF accomplishment and void
| Tor that reason. There was no possibility OF
| dividing the unsold shares as stipulated, so
! as to make the distribution as agreed upon.
D. That II there was q contract at all !:
7! was one Of partnership, and therefore
| mutual mandate to sell Tor each other.
! g. That ~ far az the alleged agreement:
| authorized Martin to mske salee bindit 6 or
hls associates as 30 price. number. terms,
! and oblSins them 20 indemnify him :or
shares sold for their benefit, il was man
I date. 1t was not in accordance with law;
! was Imperfect. and, therefore, void. It was
rot written. being required 20 be IN writing
IL the business Of particular partnerships.
| and therefore Martin could not have bound
I the plaintiffs. Ia addition TO this he threw
| up his agency, which &c had right 20 do.
! 7. That il it was not an intended partner
| ship, i was contract unknown 20 the law;
I was for Immoral purposes; created new
kind Of tenure Of properly. and was there
| fore void Finally. aud
! 3. Thst the plaintiffs committed an active
violation OF the alleged agreement by Iledg-
| ing their shares TO third persons.
I The evidence shows that they did pledge
I their shares or at least many OF them. and
I that they still stand pledged. Counsel ev;-
! IDENTITY bestowed very great LABOR on these
| points, and mas cl.ed very many American.
I Eng lieh anL French authorities 70 sustain
| them.
| Replying 20 these position. taken by tie
| defendant. plaintiff counsel refers {, Al
| dige. letter of April and January 90. 1872.
! and Martins 90 Aldi2e Of November y. De-
cember 90, 1871, February l6. 1872, and of
! March s. 1872, a. establishing che proof OF
! the dg.y,vIotio meatiuni. Hs also cites :le
| Civil CODE. articles 1891 and 1902.
He contends tina, Martins retissmen.
from the agreement vas inoppoltuDe. and
therefore can not be countenanceG: and On
this pom: refers 70 s,cry's El Jar', see
! ton Isl:
FRAUD. indeed, "A ne ee1se Q: a cOur. Of
equity, properly includes all acts, omissions
| and coneeslmen.s, which involve breach
OF legal or equitable duty. trust or cont
deAce, Justly rsposed. and injuriou. 20 az.
other, or by which an undue and uncohsci-
entions advantage Is taken Of another. And
courts % equity wiz 10. oaly interfere in
! cases Of fraud to set aside acts done, but
will also. il acts have by fraud been pre-
vented from being done by 'he parties. in
tertere ana treat The case exactly as il the
Scss had been done
On ,he question Of the immortality Of che
| agreement, 10 is urged ty counsel that The
| principle which prohibits combinations OF
persons in restrain: Of trade. relates 70 ar
1 ticles OF daily necessity, eucb "a yictrals,
! and he cites Blackstone. chap. 10 sections
| and 9, Chi.ty's note thereon, and Rex rs.
! Waddin 2tcn, Eat. l43. Some comments
! are made on the theory Of the po:estative
I CONDITION. Get up By The defendants council
! ss . cause Tor the nudity OF the agreement,
and arts. G. G. 2035, 1884 sni 202i, "a well
as that Of art. no Of ire 6. ~, as well
! Mar. up. 437' and 45l: mbiere, PIP.
G5-6-1-s; 2 Demoio;ubs On Contracts, PIP.
! sos, AeetiOn 3l2. and N q. 20 2. 323, are cited
4 do not consider j: necessary 20 review
| the seven points made by the Defendant
counsel, As my OPINION IS formed on an en-.
tirely diff erenc conclusion as to TIE nature
| OF ,le agreement entered into between the
parties. That :here was an sg,semea,
there can be no GCub.. That il was sane
toned hv law is ungues.ionso,e 20 MY
| mind. But It was lot . contract of partner
ship. Their inteyes: in me shares was moi
| undivided No one Of the parties could se'
I up any right nf ownership il the shares OF
I she others. There was nothing contrary &c
! good morals, EO4 "A restraint at trade n
! the agreement: but. in ny opinion. /: ere
! ! ated nothing more than an imperfect 0u!i
| CATION. and tina: j. gave Use {" To riga: u
! action 70 enforce il: c. C., 100. Tue obi
! cation was without compulsory cOusi,ie!a
! riou. Each mis- ht sell--ro one was obliged
I to do SO. The agreement as ~ duration
wa indefia;:t; each ccuid -eceGe trcm j
a.; pl,cit.m. Martin did withdraw from il
ana 50 notified plaintiffs by letter. II wa.
! not done at al inoppor,uue time. aud wer.
it ethe; wise the doctrine applies to partner
| ships sad mandates, and DO. to such cast
. | az this. Each held his shares IN His OWL
| separate rlgh:. and 20 say that, having solt
I them. lie wosi.d be legally bound 10 accep
: ! o,he.s 70 lieu OF the price would be TO &c
, I cree Cha: he should OWE property in common
| with plaintiffs 10 the absence OF any 6indin
! stipulation 20 that etfee:. Martin may hay;
! I Oeen morally hcnna 20 comply with tEt
, ! terms Of the agree; uen:. but am not aware
Of any law which authorizes che soUr. :;
, ! compe! him 20 do so. There is no tineH'Nn
: ! per.s upon which the court can operate 4
: | io.ce ailu to divide tia. which is solely an.
, | separately his with plaintiff ior that wi1ici
!. is exclusively theirs. The execution o: IA
terms Of the sgreemen: is matter whic.
| tests entirely il .he faro ccascieatieo OF 10
, I contracting parties. and :Eeye mist ;,e ;a,
| msnt FOR the defendant.