Beard v. Simon

18 La. Ann. 270

• Court: Supreme Court of Louisiana
• Decided: April 15, 1866
• Status: Published

Opinion

InsiiEY, J.

. The plaintiff in this case seeks to recover from both the defendants, as commercial partners, in solido, the sum of eleven hundred and seventy-six dollars and fifty-eight cents, being the amount of a promissory note drawn by Simon for $636 -18, and a debt contracted to> him in the name of Simon, for the balance; or, in the alternative, if he failed to prove a partnership, then he asks for a judgment against Simon for the whole amount, and that the sale of a certain bakery establishment made by Simon to Benaud be set aside on account of fraud and simulation, and that the said establishment be held liable to seizure and sale to satisfy his said claim.

The defendant, Simon, made no defence; but, Benaud, in his answer, pleaded a general denial, and specially denied the existence of any partnership between him and Simon, or that he did ever assume the payment of the debt of the latter, averring that he had purchased the bakery in good faith for a valuable consideration, he having resources of his own to make such purchase, and, finally, he denied the charge of fraud brought against him.

There was a judgment in the lower Court in favor of the plaintiff, and against the defendant, Simon, for the whole amount claimed; and also a judgment in favor of the defendant, Benaud, and from this last judgment the plaintiff has appealed.

it is contended by the appellant, that the judgment of the lower Court should be reversed, because no reasons are assigned in support of it; and we are referred to the cases of The Police Jury of West Baton Rouge v. Bowman, 11 A. 164, and Gallott v. McCluskey, lately decided; in neither of which vero any reasons at all adduced for the judgment therein rendered. Whilst in this one, reasons were given orally in open Court, in support of the judgment.

Boasona upon which judgments are founded should, whenever it is practicable, bo in writing; but we are not prepared to say that the mode resorted to in ibis instance, does not suffice to conform to the Constitutional requirement.

On. the merits; It is conceded by the plaintiff that no partnership between the defendants was proved; and it is not alleged nor proved, that the defendant, Simon, when he executed the act of sale to Benaud was, (to the knowledge of Benaud) in insolvent circumstances. Baudue v. His Creditors, 4 La. 247; 4 Rob. 408, 438.

Nor does the evidence, properly weighed, prove the contract attacked to have been simulated or fraudulent.

The onus to prove the vices alleged was on the plaintiff, and he has not established the charge.

The judgment of the lower Court must be affirmed; and it is therefore ■ordered, adjudged and decreed that the judgment of the lower Court be affirmed, at the costs of the appellant.