The New Orleans Democrat., 1876-05-28

LAW OF COMMERCIAL PARTNER.
SHIP.
"ChafYiraix 4 Agar vs.. Price, Hine Il
Upper. etc."
Dissenting Opinion Of Justices Howell
and Wyly.

At the request Of parties Interested in
the legal points involved in this case.
we print the dissenting opinions of JUS
tices Howell and Wyly:
No. Asal Charraix & Agar VS. Price. IIne &
Tunper Morton, Bliss'& Co.. intervenors aud
appella Is.
Morton Bliss 4 Go. were. In NV opinion, other
partners in the adventure or priee, hine Y
Tupper were their agents In making the pur-
chase. and in either contingency. Morton. Bliss
4 90. are liable Tor the price Of the mol "laeses.
There is no eyidence. as ! understand j., of
more than one sale-tha mnde hy plaintiffs tC
r,iee. Hine Il Tupper by virtue Of that saIe
only the mplasscs passed to the possession IF
Morton. Bliss TO. aud in their possession IT is
conceded the property was seGuestered.
Under such circumstances. think there can
be no doubt that Morton. Bliss Co. as we'll rs
The other parties. are liable to plaintiffs, who
should he paid
therefore dissent
Justice Nyly dissenting:
The facts and law of this case are correctly
stated in the written opinion OF the learned
Judge qpo, which adopt ma my dissenting
opinion in this case. will. besides. add "A few
Undoubtedly there was partnership between
Morton Bliss & Go. and J. - Latltte 4 90. in tho
molassee speculation which they = gan ~ No
vnmbor 1872. aud which embraces the lot ot mo-
lasses tho price Of which is now in controversy.
Undoubtedly there was but one saln If the mo
lasees IN question, and Chaifraix Agar were
p Undoubtedly they have n privilege upon the
thing sold. without registry. provided the ven
does have not sold and dievoeed oi the same
Now the question arises FOR whom was the
purchase maze by Price. liine ''uppeI? If it
was made for tho partn.rship hetween Morton,
Bliss K Go ANA John II. Lalte Co. and in
their behalf, the vendors. ChafraiS X Agar, can
certainly seauester tho noiasses anh enforce the
privilege for tho price. whether they know or
not nj the time of the sale. that Price llihe
Topper were buying Tor said partnership.
That Price. Hine & ,rupper bought this lot of
for the partnersh = between Morton, Bliss 60.
and John j. Lafltte 4 Co.. and were acting in
their behalf. there can be no doubt.
They weta but fulfilling the agreement they
had made with those parties and. in return for
the value Of their services In making the ptr
chases 1t is proven they Price, IIine \ Tunperl
were to receive one-fpurth of the net profits Qi
the speculation, when the shipments were ilna-
ly sold by Morton. Bliss Il Co.
Here the real purchaser. the partnership on
gagged in this niolasses. speculation.
holds the thing sold and refuses to
pay the price 1t ayails itself OF the
contract made by Price. Hne h Tupper T. get
the contract, or that part thereof imposing the
duty to pay the price 1t is no excuse that Price.
Hine Il Tupper, the employees Of the partner
shin to. buy the moasses. diverted the money en-
trusted to them. and did not pay 10 plaintiffs the
price Of the moasses In question.
The partnership was contracted WITH the OK
press understanding that Price. Hine Upper
were to do the buying for 1t in their own name.
for fear II it were known IN the market that the
B. J.. Lafltte X Co. were maxi ing these purchases
Of moasses to be shipped to New York on spec-
ulation the price of moasses would enhance to
their disadvantages
Now the instrument that the partnership chose
to carry out it's designs has failed to keep It's
plighted faith-it, the firm of Price. II jne Tup-
per, has violated the agreement; II has wrong
fully appropriated the money which IT received
and which II should have paid oyer to plaintiffs
rs the price Of tho molasses
II seems to me II the partnership has been dis
appointed by the wrongful act Of its employee.
who has diverted its money and not paid the
price. the loss should fall on itself and not on
Chatfraix Il Agar. Certainly the vendee; the
partnership. cannot keep the molasses hieh 1t
bough, through Price. Hine Il Tupper and not
pay tho price. 1t cannot hold up one part Of The
contract and say 1t is good and gives title. and
repndate the other in regard To the payment Of
the price. Had the partnership engaged in this
molasaea speculation shown that Price, Hine n
in buying moasses. and that it bought the mo-
asses in question from Price, Hino " Tupper.
Just rs 1t would from any other seller OF course
the demand Of plaintiffs In this case could not
doubt that the partu,'isllp u,sani1c,1 f.,
the purpose Of buying molassns on speculation.
through Price, lIine 4 Tupper. aud in the name
of Price. Une Tupper An important part Of
the contract was hat oil purchases made by
the partnership should he in the Of
Price, Hine X Tupper for fear. II II were known
who the real purchaser was. the price of mo
lassses would go M. Viewing he contract out OF
which the partnership In question arose IA an
entirety and considering tho whole scope Of the
can be doubt the molasses were purchased
by the partnership through Price. Hine Tup-
per "a parties interpoaed; and that there was In
no eense a sale or conveyance from Price. Hine
4 Tupper to said Partnership.
| therefore dissent in this case.