Carroll v. Bancker

43 La. Ann. 1078

• Court: Supreme Court of Louisiana
• Decided: November 15, 1891
• Docket: No. 10,725
• Status: Published

Opinions

The opinion of the court was delivered by

Breaux, J.

This suit has for object the enforcement of a lessor’s privilege on the proceeds of a crop of sugar and molasses consigned by one of the defendants to his commission merchant, who sold it in this city.

pleadings.

Plaintiff alleged that he had a privilege; sued for a writ of sequestration and prayed for judgment against George W. Bancker, the lessee.

Hernandez, the pledgee, was not made a party to the suit.

Notice of the writ which issued in the case against Bancker was ¡served on him on the day it was issued, viz.: December 8, 1886. On the 14th of December, on rule served on him, he was ordered to answer interrogatories in court, although he had not been made a party to the suit.

They were answered.

Evidence was heard on the trial of this rule.

On motion of plaintiff’s counsel, this rule was discontinued on ■January 27, 1887. On the 18th day of April, same year, plaintiff filed a supplemental petition alleging that defendants had conspired to defraud him, and that in consequence Hernandez had become responsible. Hernandez was at said time made a party.

An exception of no cause of action was filed and maintained, with leave to amend.

At a subsequent date another supplemental petition was filed, in which it was alleged that Hernandez knew of the lease made by plaintiff, and that he schemed with lessee to secure the sugar and molasses from the plantation leased, and to hastily sell it, in order to defeat the lessor’s lien. On issue joined the case was tried. The District Judge decided for plaintiff, and against the defendant, Geo. W. Bancker, for the rental, with legal interest.

The demand against Hernandez was rejected and tiie suit of sequestration dissolved.

From this judgment the plaintiff presents this appeal.

STATEMENT OF THE CASE.

The consignor, G. W. Bancker, in 1876, cultivated two plantations in the parish of St. Martin; one the property of his wife, the other, adjacent that of the plaintiff, from whom he leased, for $2000 per ■annum.

There was no sugar house on the leased place.

On the 7th of June, 1886, the defendant, Bancker, executed an act •of pledge, under Act 66 of 1874, in favor of Hernandez, to secure the sum of $2000, payable on the 15th day of December. This was ¡a loan to enable him to cultivate his crop. The pledgor obligated himself in this act to consign to the pledgee all the sugar and molasses made on the plantation as soon as ready for market, to be sold and the proceeds to be imputed to the payment of the amounts due ¡to the pledgee. The contract' shows that the plantation was leased by plaintiff to Bancker. This act was in dne time recorded in the clerk’s office.

Hernandez, whose testimony is not contradicted, testifies that the-note due by Bancker for advances “ was held as collateral.”

“ His account was to be paid as he shipped.”

Bancker, the only other witness who testifies with reference to-this matter, corroborates this testimony.

In September, Bancker shipped to his merchant, the pledgee, thirty-four barrels of molasses, proceeds of the crop on the leased place.

In October, one barrel, and the remainder of that crop was shipped at different times, from the 9th to the 24th of November.

The account of sales credit the proceeds of the sale of the last sugar and molasses made on the Carroll, leased, plantation on December 1.

The last entries on Bancker’s account, on the credit side, are:

1886.

Nov. 29, 8 bhds. of sugar.................................................................................$220 91

Dec. 1, “ “ “ “ 260 67

“ “ 10 barrels molasses.............................................................................. 115 86-

“ 4,16 hlids. of sugar....:....................................................................... 489 89

The last sugar, the sixteen hogsheads, were sold on the day notice was given to Hernandez of the sequestration.

These were not made on the leased plantation, but on the Bancker place.

The only testimony we have on the subject is the following by Bancker:

Q,. “Do you remember what were the last shipments made by you to Mr. Hernandez, prior to December 8, 1886? ”

A. “ The last shipment I made was eight hogsheads of sugar on the 80th of November.”

Q,. “ And next prior to that? ”

A. “ On the 29th of November.”

Q. “What did you ship then?”

A. “Eight hogsheads of sugar.”

Q,. “Where was that- sugar, those two lots, shipped from?”

A. “ They were from Mrs. Bancker’s plantation.”

Q. “ On which of these plantations, if either, had the cane which produced the sugar been raised?”

A. “ On Mrs. Bancker’s.”

Q. “ Had any portion of the cane, out of which these sixteen hogsheads of sugar were made, been raised and been at any time upon the plantation leased from Mrs. Carroll?”

A. “No, sir.”

This witness also testifies that the crop made on the leased place' was removed from the place more than fifteen days before it was. shipped to the merchant.

The cane was cut and hauled to the sugar house, and manufactured into sugar. This, he says, occupied more than that number of' days. In time the sugar and molasses were hauled to the depot; they were-marked in the name of the lessee, Bancker, in whose name the bills, of lading were issued and by whom they were mailed to the merchant.,

That it was all sold prior to the 2d December, Hernandez testifying states:

“ Sales had been rendered on the 4th of December, after the writ of sequestration had been seryed, sixteen hogsheads of sugar. That is all.”

His testimony and that of Bancker made it evident that this sugar was not from the Carroll place, also that the proceeds from the sale of the sugar from cane on the Carroll place was credited on Bancker’s account before service of the writ of sequestration, and that Hernandez did not know that the rental was still unpaid.

He testifies:

Q. “ Did you know, as a matter of fact, that Mr. Bancker had not. paid the rent to D. R. Carroll for the lease of the plantation? ”

A. “ I did not, sir. ”

No other witness testifies as to this matter except Bancker, who' corroborates Hernandez. Relative to undue haste in selling the crop, the only witness is Hernandez himself, who was called in and examined as a witness for D. R. Carroll, plaintiff, and testified that he did not know whether the sugar came from the plantation of Bancker or from that of plaintiff, and that he sold it on its receipt, as he sold other crops.

On the trial of the rule, which was afterward discontinued, the counsel for Hernandez admitted “ that for the purpose of this rule, but not as a matter of fact, that the sugar received from Mr. Banckerby Mr. Hernandez, was received by him on the days on which it was shown to have been sold, and that such date was the date of shipment from Mr. Bancker’s plantation.”