The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1875-02-16
THE COURTS.
SUPREME COURT.


e Rhoda E. White, appellee, versus N.Y.
Clark Gaines, appellant Argument fc
a rehearing A rshearing is most re
specially asked for in this case, bot
" on the merits and as to the amour
t. for which execution might issue, in case that
~ finally, the agreement sued on should be de
>, termined to be valid and binding.
lon the ralidityef The agreement sued on.
= We quote the opinion:
e 1.-The object of this suit is to enforce con
n tract entered into between the parties and on
Q John Mack, whose interest is now in plaintiff
entered into on the 30th May, 1864 by which
e the defendant agreed to pay to the plaintiff
e fifteen dollars out Of every hundred which
might be realized out Of the estate of the de-
r PENDANTS father.
The defense is that the agreement was with.
out consideration and was obtained throu gh
fraud.
There was but one thing forming the con-
sideration of the agreement sued on That
was the surrender of the documents procured
by White and wife, from the defendant in
Darksvllle. Mrs. Games swears to this fact,
and SO does Judge Emott, "the counsel to
whom she had submitted" her case, Nand
who was informed of all the circumstances ~
LSee page original brief and page 759 ct sea-
OF Record. The defense is that the agree
ment (sued on) was without consideration.
That ground of defense is not noticed in the
reasons for judgment.
1t is submitted that the proof is ample, that
| White and wife threatened to retain and use
against defendant the documents obtained by
him from her in Darksville, and through
| these threats she was in measure at least, to
use mild term, induced, to sign the contract
sued on.
1t there was no consideration for the agree
ment sued on, the fact that it was made by
the adv ce of counsel, certainly would not
validate the agreement.
The question recurs, ''has the defense
none OF the elements out of which the right
to repudlate the contract can be framed?"
1t Is submitted that want of consideration
is good defense to set up against anv agree
ment, as between the parties. The sole con-
slderation for the agreement sued on was the
surrender by the plaintiff and her husband,
the documents obtained by them in Darks-
vile. Did that surrender and their documents
form valid consideration for any contract
This question was argued at length both |
orally and by brief, on behalf of the defen-
dant.
That argument was not met either orally or
by brief by the plaintiff. A very large part
of the record is taken up with testimony to
the fraud and force with which those docu-
ments were obtained, and it is submitted that
the proof is conclusive on the point. There
is no allusion to this question, so clearly put
in the pleadings SO fully proved in the
record, and SO thoroughly argued to the
court in the opinion rendered. Until
this point, the main point in the case,
that on which the whole case turns, is
settled at least by an allusion, the decision
OF the court cannot carry that satisfaction to
the mind which is always desirable in reading
the decision in any case, especially when the {
constitution Tart S0] requires the reasons on
which the judgment is founded to be given !
The court very correctly states the defense
70 be ''want Of consideration" An attempt {
% show this was assuredly most strenuously 8
made, and yet not word vouchsafed why the
defense failed. Under these circumstances, l
! reconsideration of the case on the merits is c
asked for. i
LITTLE amount for arhich execution uas de- Q
reed to issue. n
The other large part of the record was taken
Up by the proof made upon this point. The O
arrived at by the court qua, and |
consented to by the counsel for the plaintiff, r.
vas that ''the amount of money which is t.
'roved to have been received, collected and b
called by the defendant since May 80. 1864, O
s heir and daughter and devisee of Daniel n
lark, deceased" was S134 ,034 &c. Is per cent a
which (see judgment) is $50, los 20, and tor r.
7hich execution was ordered. Il
The question as to the correctness of this @
mount was lengthily discussed before the .
curt. There is, however, no alluson to the b
uestion in the opinion, and the amount re- Il
lains the same in the decree. This must b
ave been an oversight and an inadyertence vi
n the part Of the court. W
One item. certainly, is above all question E
nd cavil Improperly included This is the tie
EN- for costs recovered back from the city, ca
PSI 3d. Is per cent of which is 1927 20. h,
his surely is not included in the phrase of a,
Re agreement, SO often quoted by the plain to
ifs attorney, and studiously repeated in the III
ecree. a,
The decree is for 'the right to take out exc ii.
1sion for the sum of $50, los 20, being Is per ht
mt of the amount of money which is proven ii,
have been recovered, collected and realized
7 the defendant since May 80, 1864, as heir
I'd daughter and devisee of Daniel Clark, de-
ased, reserving to the plaintiff the right to
Ike out execution from time to time for SIS tr
1t OF every 500 that may hereafter be re- n,
vered, collected OF realized by the defend
It, or which she may heretofore have recov- de
ed, collected or realized, and of which no
oof has been made, upon proof of said re-
very being given and produced of, from
out of the property and estate formerly of
9 said Daniel Clark, deceased"
What sums of money have been proven to
~SNAA
the defendant of, from or out of the property
d estate formerly Of Daniel Clark, deceased,
ice May 80, 1864?
Referring to pages "a ct seq. of our original
ief, we find:
The costs collected back, s2ls1 81,
lisp cent Is 1927 20
Sale to f. Abell 800
:. F. Hol!ander-250O
=. Paul Berge. .71O0-10,30O . 1915 90 20
The Is per cent of these sales are
erved by the purchasers, subject ga
this judgment.
Amount of DeFe-iet's sales, S., s55 5O, 1473 50
The u per cent Of these sales are tr,
o reserved by the purchasers. va
Deblois valued the identical pro-
,erty sold by DeFeriet at s10,773.
his valuation was included in the
ginal amount, and was in excess of tn
actual sale by DeFeriet. .$947 so is 142 10 lor
'ertainly. all these percentages, sbi
ounting to- .................... $34sS Is NJ
ult not be included in the amount ne
l = l.: