Carrière v. Labiche

14 La. Ann. 211

• Court: Supreme Court of Louisiana
• Decided: March 15, 1859
• Status: Published

Opinions

Merrick, C. J.

This suit is brought by the plaintiff against certain of the partners of the late firm of Daran, Labiche & Co., to recover $377 for wine sold in casks and boxes. The defence to the action is, that the firm dissolved and transferred their business to the new firm of Daran & Jourdan, who assumed the ¿leUt and transferred the same to their boohs, and that the plaintiff assented to the arrangement.

There is also a plea of prescription of one year. The defendant, J. A. Carrie, denies having been a partner, and alleges that he only acted as agent of his wife, A. Carrie, who is separate in property.

The promise of Daran & Jourdan to pay this debt, and the entry of the same on their boohs to the credit of the plaintiff, together with the repeated demands of the plaintiff, through his clerk, upon both firms for payment, cannot have the effect of releasing the original debtors. The law requires an express agreement to discharge the original debtor. The delegation was not complete. C. C. 2188, 2185 ; Pothier on Obligations, 600 ; 11 Rob. 511, Muggah v. Rogers.

The matters offered to be proven by defendants, as stated in their second bill of exceptions, would not, therefore, have formed a defence to the action, and the ruling of the Judge has not prejudiced the defendants on this branch of the case. The first bill of exceptions is defective -in not stating the objection to the witness, nor by whom made, and does not enable us to revise the ruling of the Judge excepted to'.

Plaintiff’s debt is admitted to have been correct when originally made, and is also established by proof.

The bill of the wines does not show that the action is that of the retailer of provisions : on 'the contrary, it would seem that the plaintiff was a wholesale dealer. The item of December 5th is for 100 boxes of wine, and those of 17th and 27th of the same month was for barrels.

The prescription of one year is, therefore, inapplicable.

The proof does not show that the defendant A. Carrie, is separate in property from her husband. In the absence of such proof, her husband is bound in solido with her. C. 0.128.

Judgment affirmed.