The judgment of the court was pronounced by
Rustís, C. J.
This action is brought by the holders of a promissory note-, drawn by the defendant, and James Clanton by the defendant as his attorney in fact, for the sum of $6,670-, to the order of Thomas Neal, and by him endorsed;it is dated on the 17th of October, 1836-, and payable on the 1st of January, 1839-; it bears ten per cent interest, if not paid when due, and the promise to pay is joint and several between the debtors. There was the verdict of a jury in favor of the plaintiffs in the- court below, and the defendant, Bullard, appealed from the' judgment rendered upon it.
The cause was argued before the late Supreme Court, in October, 1844, and a decree was made, by which the verdict of the jury was set aside, and a new trial ordered. The defendant applied to have the deeree set aside and a rehearing, granted, on the ground that the court had not settled- the questions-raised by his bill- of exceptions, which-had- been taken at the trial to the admission of certain evidence on the part of the plaintiffs. He insisted, in his petition, on his right to have those questions determined by the court, whose decision was to serve as a- rule to the court below, as- to the admissibility of the-evidence, on the new trial, which had been ordered by the decree. In this-position we took- eog-nisa-nce of the cause at the last term, and the question then before us was, whether a re-hearing should be granted or not. As the parties in whose favor the decision of the court had been made, themselves applied for a revision of it, we examined the whole case, and, under the deference which- we were bound to extend to- the opinions of the court which had preceded us, we came to the conclusion that,on the grounds which the defendant assumed, the re-hearing could not be refused. It would be a vain thing in the administration of justice, for an appellate court to award a new trial without deciding on those questions in which it was alleged- error had been committed on the first trial, and to determine which the appeal' had been taken. But the decision of this court on those points might have a conclusive influence on the final decision of the cause; they might control it; and, notwithstanding the inclination of this court to maintain the decision which awarded a- new trial, the view it might take of the questions of law presented by the bill of exceptions and which the facts themselves required to be determined, might prevent its concurrence in that decision. A re-hearing was accordingly granted and the whole case was opened, and has been argued at bar,and by the defendant in person in a printed brief, which we shall consider as presenting the grounds of the defence.
The present plaintiffs are to be considered as nominal, and the controversy as being between the mercantile firm of Lambeth & Thompson, of New Orleans, and the defendant. The occasional- use of a different social name for the plaintiffs, makes no change in the relations of the parties. As we have not been able [818]*818to adopt the conclusions to which our predéeessors arrived, it is proper that we should set forth our grounds of dissent in a more extended form than any intrinsic difficulty in the case would otherwise warrant. Every point has been elaborately examined, and we have the-means before us'of determiningthis litigation in a mannerwbich will do-full' justice to the parties.
Billiard & Clanton, the signers of the note sued on,-were partners in the cultivation of a cotton-plantation in the parish of-Rapides. It'was a particular partnership, and the-business of the-firm‘appears to have been conducted in the social name'of'jSííZto-íi! Sf Clanton; the partners were not bound in solido for the debts of the partnership. Lambeth Sf, Thompson were the factors of. the partnership in New Orleans,-sold the crops, made advances and paid for supplies ;-and w-e may assume that the relations subsisting between them were of principal-and factor, which had existed for several-years preceding this controversy. There is nothing in the evidence which-establishes any other relation between them*
The bill.of-exceptions taken on the trial of the cause was to the admission of certain evidence, and is thus stated : Be it remembered, &«, the plaintiffs offered in evidence sundry accounts of Lambeth & Thompson, and of W. M. Lambeth & Thompson, with Bullard Sf Clanton, and offered Edmund Harding, a-witness, to prove the correctness of the same ; and offered further certain -notes purporting to be-signed by H. A, Bullard; and also offered-further* to prove by-the said Harding a different imputation of the moneys received by W. M. Lambeth Sf, Thompson, from sales-, of cotton of Bullard Sf Clanton, than to the extinguishment of the debt sued. for. To- all- of- which the defendants, by their- counsel, objected, on the ground that the plaintiffs have not declared upon said accounts, or sued to recover the amount alleged to be due thereon ; and have given the defendants, no- notice- that such accounts Would be introduced, or proof offered in relation to the same ; and on the further ground that, no evidence of-a different imputation, than to-the most burtheusome debt-can be admitted-, except that established by the 2161st article of the Code, to-wit: the acceptance of-a receipt by the debtor, in which the «•editor has imputed what he received to-one of the debts specially, that imputation being.different from that established bylaw; and that,. consequently, when the law has established a particular mode of proof no other testimony can be resorted to, unless the absence-of legal proof is-- accounted- for. But the court overruled-the whole of said objections, and ordered the said testimony to be received-; to all which the counsel excep.t, &c.
The argumentative port of this bill of exceptions, it is unnecessary to notice-As to the questions of law ifc presents, they are attended with no difficulty whatever in their solution.-
It >s the duty of the factors to keep accounts of the transactions of- their principals, and it was necessary to prove that they wer-e kept, and-kept correctly; and the whole evidence was admissible under the issues presented in the defendant’s answer. None of the grounds of objection taken to the evidence are tenable. They go to the effect, rather than to the admissibility, of it. It is all before us, and is strictly legal and pertinent to the cause, under the defence assumed by the defendant. We have given our decision on the points set forth in the bill of exceptions itself, and not, as erroneously stated, in the petition for a re-hearing.
1 he first point made by the defendant in his printed argument is: “ That the [819]*819note having been paid by the defendant’s agents andfaetors, -at his'sequest, was, by thatfact a3oner-extinguised, and could not be-revived-and put in circulation, leaving their mandataries their right to be reimbursed, the note remaining in their hands merely as a voucher in-support of that item of their account with their principals, Bullard 4* Clanton.” The proof of-the fact of .-payment, on which this argumentative proposition rests, is said to -be contained--in - a letter fr-om plaintiffs to Martin, who at the time it-was written-was the holder of the note. The letter runs thus:
■ “ New Orleans,’December 29,1838.
R. C. Marlin, Esq., Dear-Sir: — Judge Bullard, having heard'that Mr. Neal
Free access — add to your briefcase to read the full text and ask questions with AI
The judgment of the court was pronounced by
Rustís, C. J.
This action is brought by the holders of a promissory note-, drawn by the defendant, and James Clanton by the defendant as his attorney in fact, for the sum of $6,670-, to the order of Thomas Neal, and by him endorsed;it is dated on the 17th of October, 1836-, and payable on the 1st of January, 1839-; it bears ten per cent interest, if not paid when due, and the promise to pay is joint and several between the debtors. There was the verdict of a jury in favor of the plaintiffs in the- court below, and the defendant, Bullard, appealed from the' judgment rendered upon it.
The cause was argued before the late Supreme Court, in October, 1844, and a decree was made, by which the verdict of the jury was set aside, and a new trial ordered. The defendant applied to have the deeree set aside and a rehearing, granted, on the ground that the court had not settled- the questions-raised by his bill- of exceptions, which-had- been taken at the trial to the admission of certain evidence on the part of the plaintiffs. He insisted, in his petition, on his right to have those questions determined by the court, whose decision was to serve as a- rule to the court below, as- to the admissibility of the-evidence, on the new trial, which had been ordered by the decree. In this-position we took- eog-nisa-nce of the cause at the last term, and the question then before us was, whether a re-hearing should be granted or not. As the parties in whose favor the decision of the court had been made, themselves applied for a revision of it, we examined the whole case, and, under the deference which- we were bound to extend to- the opinions of the court which had preceded us, we came to the conclusion that,on the grounds which the defendant assumed, the re-hearing could not be refused. It would be a vain thing in the administration of justice, for an appellate court to award a new trial without deciding on those questions in which it was alleged- error had been committed on the first trial, and to determine which the appeal' had been taken. But the decision of this court on those points might have a conclusive influence on the final decision of the cause; they might control it; and, notwithstanding the inclination of this court to maintain the decision which awarded a- new trial, the view it might take of the questions of law presented by the bill of exceptions and which the facts themselves required to be determined, might prevent its concurrence in that decision. A re-hearing was accordingly granted and the whole case was opened, and has been argued at bar,and by the defendant in person in a printed brief, which we shall consider as presenting the grounds of the defence.
The present plaintiffs are to be considered as nominal, and the controversy as being between the mercantile firm of Lambeth & Thompson, of New Orleans, and the defendant. The occasional- use of a different social name for the plaintiffs, makes no change in the relations of the parties. As we have not been able [818]*818to adopt the conclusions to which our predéeessors arrived, it is proper that we should set forth our grounds of dissent in a more extended form than any intrinsic difficulty in the case would otherwise warrant. Every point has been elaborately examined, and we have the-means before us'of determiningthis litigation in a mannerwbich will do-full' justice to the parties.
Billiard & Clanton, the signers of the note sued on,-were partners in the cultivation of a cotton-plantation in the parish of-Rapides. It'was a particular partnership, and the-business of the-firm‘appears to have been conducted in the social name'of'jSííZto-íi! Sf Clanton; the partners were not bound in solido for the debts of the partnership. Lambeth Sf, Thompson were the factors of. the partnership in New Orleans,-sold the crops, made advances and paid for supplies ;-and w-e may assume that the relations subsisting between them were of principal-and factor, which had existed for several-years preceding this controversy. There is nothing in the evidence which-establishes any other relation between them*
The bill.of-exceptions taken on the trial of the cause was to the admission of certain evidence, and is thus stated : Be it remembered, &«, the plaintiffs offered in evidence sundry accounts of Lambeth & Thompson, and of W. M. Lambeth & Thompson, with Bullard Sf Clanton, and offered Edmund Harding, a-witness, to prove the correctness of the same ; and offered further certain -notes purporting to be-signed by H. A, Bullard; and also offered-further* to prove by-the said Harding a different imputation of the moneys received by W. M. Lambeth Sf, Thompson, from sales-, of cotton of Bullard Sf Clanton, than to the extinguishment of the debt sued. for. To- all- of- which the defendants, by their- counsel, objected, on the ground that the plaintiffs have not declared upon said accounts, or sued to recover the amount alleged to be due thereon ; and have given the defendants, no- notice- that such accounts Would be introduced, or proof offered in relation to the same ; and on the further ground that, no evidence of-a different imputation, than to-the most burtheusome debt-can be admitted-, except that established by the 2161st article of the Code, to-wit: the acceptance of-a receipt by the debtor, in which the «•editor has imputed what he received to-one of the debts specially, that imputation being.different from that established bylaw; and that,. consequently, when the law has established a particular mode of proof no other testimony can be resorted to, unless the absence-of legal proof is-- accounted- for. But the court overruled-the whole of said objections, and ordered the said testimony to be received-; to all which the counsel excep.t, &c.
The argumentative port of this bill of exceptions, it is unnecessary to notice-As to the questions of law ifc presents, they are attended with no difficulty whatever in their solution.-
It >s the duty of the factors to keep accounts of the transactions of- their principals, and it was necessary to prove that they wer-e kept, and-kept correctly; and the whole evidence was admissible under the issues presented in the defendant’s answer. None of the grounds of objection taken to the evidence are tenable. They go to the effect, rather than to the admissibility, of it. It is all before us, and is strictly legal and pertinent to the cause, under the defence assumed by the defendant. We have given our decision on the points set forth in the bill of exceptions itself, and not, as erroneously stated, in the petition for a re-hearing.
1 he first point made by the defendant in his printed argument is: “ That the [819]*819note having been paid by the defendant’s agents andfaetors, -at his'sequest, was, by thatfact a3oner-extinguised, and could not be-revived-and put in circulation, leaving their mandataries their right to be reimbursed, the note remaining in their hands merely as a voucher in-support of that item of their account with their principals, Bullard 4* Clanton.” The proof of-the fact of .-payment, on which this argumentative proposition rests, is said to -be contained--in - a letter fr-om plaintiffs to Martin, who at the time it-was written-was the holder of the note. The letter runs thus:
■ “ New Orleans,’December 29,1838.
R. C. Marlin, Esq., Dear-Sir: — Judge Bullard, having heard'that Mr. Neal has passed off the note of B. & C., has called upon us with an urgent request that we would pay it. We must therefore take the note of you as cash the day it is due. -You will please enclose it to us-by steamboat, and it shall be passed to your credit.” It closes with remarks about the-scarcify, '&c.
On the 6th of Jan. following, Martin transmitted-the-note to the--plaintiffs,-at their request, and his aecouat-was credited-with its amount.
This letter is-held to be proof that the plaintiffs paid the note on the defendant’s account, and gave up the securities of the endorsement, the solidarity, a-nd the mortgage-which the note carried with it, becoming the simple creditors of the defendant, or of the partnership -of Bullard & Clanton. We think otherwise. The note was not yet due: the defendant undoubtedly requested the plaintiffs to pay-it. It-would have-been to-the defendant a-very advantageous conversion of an onerous debt into a demand against him in account-current; but we have no evidence that the factors assented to-it. They paid-the note to Martin,-because they could not get it otherwise. As to him, as he did not endorse the-note, payment was made — the business was closed; but the drawers and endorser were- entirely unaffected by any thing contained in the-letter, or transaction with Martin.
The conduct of the plaintiffs and defendant is- conclusive as to the character of this transaction, if it were susceptible of any doubt in its origin. Nay, the very answer and argument-of the defendant refutes this pretence. The answer expressly charges that the note, before maturity, was transferred to the plaintiffs, who have, ever since January,1839,-until recently, been the holders thereof; that by the imputation which the-law itself makes, the note has been paid by the proceeds of the crops of Bullard Clanton, - which - the plaintiffs had received-smce the-note fell due, and thus the note has been extinguished by the imputation of these payments. This payment to Mar-tin was not even pleaded; but the extinguishment by reason of the imputation of the proceeds of the crops, was alone charged in the answer, -which-is under oath. This point-of defence has no foundation whatever.
The second is ; “ That even supposing Lambeth ’4’ Thompson to have been holders of the note when itfell due, and subrogated to all the rights of the original payee, it was extinguished withinthree months by the imputation of payment, by the proceeds of cotton sold by -Lambeth S¡- Thompson for the makers.” And it is further contended that, if the imputation is not made, the partnership funds must be considered to be in the hands of the plaintiffs unapplied and subject to a final settlement, and that Bullard & Clanton have a right to insist on such an application of it as to stop the onerous interest the note bears, leaving to the plaintiffs their recourse against the partners, each for their one-half, for •the balance.which may be duo on account.
[820]*820It is contended that no imputation of payment was made by the creditors or debtors, and that in that-case the .law makes At. that the mortgage note was the most .onerous, and that which the debtors -had at the time the most interest in discharging; and that it became -extinguished by the -proceeds of the crops of -the partnership., which-the plaintiffs had ¡received. It becomes necessary to ■enquire if -no imputation was made. The plaintiffs insist that an imputation was -made of the partnership funds to .the partnership debts, .consisting of advances and supplies-for the plantation.
In the.case of Bloodworth v. Jacobs, ante p. 24, we had occasion to .examine ¡the subject of the imputatio i of payments, in reference to .the .ordinary,transactions between planter and factor. We considered-that accounts between .these .parties, without-respect -to any particular agreement, were .necessarijy ¡provisional until settled, .and .even after settlement may be ¡rectified -by-either party .on account of errors or omissions.' We held .that when, at the usual .time of rendering .his accounts, the .factor sends his account to, his principal, .in which .certain,imputations of payment are made by him, and the ¡latter approves ,it, without .any fraud-or surprise, the payments .are .considered ,as .having .been made by-the authority of the debtor himself; and the ratification of the .acts .of .the agent .is considered as tantamount to an original imputation of payment by himself, and relates.back to .the time of the doing of the act which .is the subject of the ratification.
The dealings of Bullard & Clanton with .the plaintiffs were from .year .to year, and .all supplies and advances were made on that term of credit. There .are accounts of each year, which are taken from the books .of the plaintiffs, in which,the .note sued,on does not appear ever to .have been.charged .to the partnership. On the,contrary, at the foot of each account a memorandum is .made .to this effect: “N. B. We hold your mortgage note, due 1-á January, 18311, in favor of Thomas Neal, for $6,6,70.”
These accounts, showing the disposition made of the partnership funds from year .to year, and not objected to within a reasonable time, it is .contended, .conclude-the defendant. To this it is answered that, .no such accounts were .ever rendered to the defendant, although they may have been to his partner.Clanton; but if Clanton had expressly assented to that mode of stating the accounts -and applying the .funds, fit would not have bound his partner.
The.verdict of the jury has-virtually .found .the fact -that .the accounts were rendered to the partnership, and the only ground on which we could interfere with the-verdiot would be,that,it-was contrary .to .evidence, .orviolated some.rule of .law. There is no direct evidence of the reception of the accounts by either of the partners, but there is evidence from'Which¡the:i:eoeption,on.the part of the defendant may be inferred. It is such as produces conviction on our minds of the .fact, and fully authorises, nay obliges, men ¡whohave.consciences, to consider it as established.
Harding, a. witness, swears,-.that -the accounts-current offered exhibit the state of the accounts between-the plaintiffs and Bullard is Clanton, during the period-embraced by them ; ¡that the defendant ¡was the business partner of the firm, he attended ¡to the money arrangements, and Clanton attended to the plantation. The defendant frequently called at the counting-ihouse -of the plaintiffs, and'talked of his accounts. He never,-to the knowledge of witness, made any objections to -the accounts as they ware kept, and .are here exhibited. Witness .made out fonthe defendant the original accounts, .of .which-those ,pre[821]*821seuted are copies. Witness did.nat hand .them to .the defendant, but they were delivered to Mr. Thompson, one of the plaintiffs, to be handedto the defendant,as he resided in the city. They were made out as, in .the;usual, course of business,similar accounts .were for the other customers. Has.no .knowledge .that the defendant received the accounts thus made out. When they were handed to Thompson, he took .them, went out, and returned-without them.
The defendant has made .his defence in .person, though assisted by .counsel, and, in an elaboratalyprepared.argument, filed,on the 18th Qctoher, J8áá, thus treats-this- branch of the subject.: “ Rut.the receipt given at the time must be given and accepted without fraud or surprise!. Now, I know ,v.ar,y little about double entry. I .do not know that I .yet ¡understand that account. After receiving from Lambeth & Thompson a receipt .for ¡the .proceeds ,of .the,cotton without special imputation, I .could not imagine that ¡the account-current rendered .afterwards would give a different direction .to the .funds; and, as .the account was with the .usual reservation o.f .errors excepted, I,had no curiosity to look ¡into ¡it until the final settlement, .and I never was .called,on for such final settlement.”
If .the jury had before them this argument, and gave ¡to it the sense .which its ¡language fairly implies, and .considered it as .fortifying the testimony .which wehave stated,.they did what they were justified in doing, ¡and which we feel ourselves bound ,to do. We cannot .consider .the .verdict,.in this respect, .unsupported by evidence.
No oipection having.been made to the imputation of payments in theaooouats .until the,institution of this suit, according to ,the decision,in BloodworÜi’.s -case., they must be considered.as having been made by the .authority of the dehtor himself. We do .not think.there is any ground for the .complaint .against .the farm-of the accounts, as rendering them not easily understood. They .are free from.complexity,and simple and,clear.
Before leaving this branch of the.subject, it is proper -to add, ¡that the imputations -exhibited by the.account are such as any man of business would expeot to be made of the proceeds of the crops. Bullard & Clanton were .constantly drawing on their factors for their immediate wants, such as planters .usually have, .and of .which they appear,to have had their full share. The supplies for the plantation must be .furnished ; .its expenses.must be paid; the sums ¡required for the partners must be had. Thus there was a-.continued drain upon thefumde in the hands of .-the parties by .the orders and drafts of the partners; and yet ,iit is contended .that, fin the .face of ¡these acts of the parties and their relation as planter and.factor, every thing else was .to be disregarded in the application of the proceeds of the.crops, and they were to he .applied ¡to .this solidary obligation, secured by mortgage, .-leaving the factor .to .the mere joint liability of the planters for-even the .very advances .which .had¡enabled .them to produce the crops. Certainly the imputation thus .insisted on by the .defendant is not such .a one as,any man of common .intelligence.and prudence would .require .or .acicede to, .under the circumstances disclosed by the ¡correspondence ,and ¡the .state of the acoounts between the parties. Yide 2 Greenleaf on Evidence, ¡S29.
It is to be observed that the imputations made by the plaintiffs are objected to, ¡solely .that they .ought, to have been ap,plied to .the extinguishment of the mortgage note, as being.the most onerous. No question is made concerning the right ■ of the plaintiffs in making the imputation on any other ground, and no distinction .is rnade.as.to any of the debts paid, or advances made, by Lambeth & Thomp[822]*822son, ail'd charged by the partnership; and as we differ widely in-our conclusions from the court before -which this appeal was first argued, we add another view of the subject which-is-to us obvious, and decisive as to the law of-the case, as it is presented'by the-facts.
'The note is, on its -face, not a-note given by-the partnership -of Bullard & Clanton, but by the-two persons, H. A. Bullard and James Clanton. They bind themselves in solido, and-not as partners. It is alleged in the answer, that the note was given as part of the price of a tract of land purchased by -them jointly,.as partners in -the planting business; but the act of-sale-purports to convey the-property not to Bullard & Clanton, as.partners, but to Henry Adams Bullard-and James Clanton.
In order to give this defence the-semblance of-validity, it was necessary that this note should-be a-partnership note, and it was -so-pleaded ; -but the fact has not been proved. There is no evidence of it. If -any real estate was included in this partnership,-the contract of partnership must be-in writing, according to the rules-prescribed for the conveyance of real estate. 'Civil Code,-art. 2807. And in order to test the legality of the position assumed in the defence, let us suppose-the fund to be in the hands of the plaintiff unappropriated, and at the disposition of the court-under'the respective rights -of the parties.
It is in-vain'to attempt to-disguise the result, if this-defence succeeds. It is that the creditors-of the-pa-rtnership of Bullard 8f Clantonw-e to:be left unpaid, with the partnership funds in their hands, and this diversion of the funds is to be for the benefit of the creditors of the-individual partners. What is the note sued-on ? The -joint a-nd several obligation-of H. A. Bullard and James Clanton. If that be-paid, their creditors are benefited-by it for the amount of the debt extinguished, to the wrong-and detriment of the.partnership-creditors. If the debt of the plaintiffs — the plantation or factorage -debt, be paid, -no one is wronged. Partnership property must be applied to the payment of partnership debts, in preference to those of the individual partners ; and Lambeth & Thompson have-so-applied it. -Civil Code, art. 2794. If the fund-were now to be disposed-of, under-the-case as it is before us, the-imputations of payment would stand in-law,-and the parties be left in statu quo.
These are the-conclusions to which-we have come after a-careful consideration of the questions presented -to-us. Those of-fact rest upon the verdict of a jury, not of merchants or factors in the capital, but taken from among those who are familiar with the relations of the parties, and have no bias in-favor of factors or their interests. Those of law are of so familiar a character, that we should not be authorised in dwelling on-them, except -for.the reasons before mentioned in. this opinion. .Judgment affirmed.