Hermanos v. Duvigneaud

10 La. Ann. 114

Opinion

Slidell, 0. J.

That Duvigneaud and Rauvert wore partners, is clearly proved. We are not satisfied, however, that they were liable as commercial partners, as is charged by the plaintiffs. The nature of their association was this: Pauvert had invented a method of clarifying sugars, and associated Duvigneaud with him in the enterprise of obtaining a patent for it in their joint names in Cuba, and selling the right of using it to planters in that island. Their idea was, to receive remuneration from the planters in the form of a certain charge upon each box of sugar clarified by the process, of which Duvig-necuud was to have a per centage. These social purposes and arrangements did not bring them within the catigory of commercial partners as defined by our Codo, and Duvigneaud therefore is not liable in solido. See 0. 0. 2790, 2843.

It appears that both partners went to Cuba, and were in direct communication with the plaintiffs, who from time to time attended to their affairs and made advances. On the 14th of June, 1852, Pauvert gave the plaintiffs, at Havana, his bill of exchange on a house in Now Orleans, at twenty days sight, for $2,855. This bill was protested for non-acceptance. Its amount, with interest and damages, is claimed from the defendants, and its consideration is stated to have been advances for the partnership of Dmigneaud & Pauvert.

Wo concur with the District Judge in the opinion, that without special authority, Pauvert had no right to bind his partner by bill of exchange; but as wo have observed, the action is not founded merely on the bill, and we think it satisfactorily proved that the advances in consideration of which it was given, were made for the partnership. Among other evidence tending to this conclusion, are a letter of Dmigneaud to the plaintiffs, and a letter of the plaintiffs to Twibill & Edwards, which was offered by Pauvert, and received without objection b}r Duvigneaud. In the former, dated 9th of June, 1852, Duvigneaud uses the following language : Comino vous nous avez considérablemcnt aide dans cotte operation et quo vous avez fait des débours qu’il faut que nous vous remboursions, j’espere, messieurs, qup vous voudrez bien avoir égard á la position malheureuse dans laquelle je me trouve en ce moment, et m’allouer jusqu’á I’automne pour vous remboursor les dépenses que vous avez faites. In the other letter, which was offered for the purpose of showing that the plaintiffs had retained possession of certain machinery delivered to them by defendants, or one of them, the advances of plaintiffs to Duvigneaud & Pauvert, are stated approximatively at $2,800. These letters, taken in connection with the other evidence in the cause, satisfy us that Dmigneaud should be held jointly liable for the amount of $2,855. He cannot, however, be held under the evidence, for damages on the protested bill.

Pauvert acquiesces in the solidary judgment rendered as to him by the court below.

Footnotes

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The qualification as to the execution of the judgment, appears to us sanctioned by the equitable ruling in West v. McConnell, 5 La. 428.

It is therefore decreed, that the plaintiffs recover of the defendant, Louis Dmigneaud, the sum of $1,827 50, by reason of his indebtedness as a partner of the firm of Duvigneaud & Pauvert, and as his vorile share, with costs in both courts, the judgment against Pauvert remaining undisturbed; the right of execution against Dmignecmd being subjected to the same qualification as was imposed by the District Judge as to the execution against Pauvert.

Judgment of District Court. — Pa/mert is liable beyond question. The case is not so clear against Dumgnemcd. He was undoubtedly a partner of Pamert; but the evidence does not show unequivocally that he was a commercial partner according to the definition of the code. If he was an ordinary partner only, there is no evidence that Pa/mert had a right to bind the firm by drawing bills of exchange. Story on Partnership, p. 1S9. Consequently the bill sued on is not evidence of the amount due by the firm; and there is no other evidence in the cause to supply the defect.

It appears that property of Pa/mert, or of the partnership, has been “ embargado''' in Cuba, by the plaintiffs, lor the security of their claim. Prom the explanation of their counsel and the dictionary, I understand this word to be equivalent to sequestrated. Pwmert is consequently entitled to the relief extended to the defendant in the case of West, Syndic, v. MeConnell, 5 L. R. 424. Judgment of nonsuit against plaintiffs in favor of Dmigneaud, with costs; and judgment in their favor against Pa/mert, lor $2,055, with legal interest from the 21st of June, 1852, six dollars costs of protest and costs of suit, except those occasioned by making Dmignea/ud a party. It is further ordered, that no execution shall issue upon this judgment, until the plaintiffs shall file in this court, evidence that the proceedings against defendants or Pa/mert's properly in Cuba, have been legally dismissed, or until they enter as credit on this judgment, the net amount of the proceeds of the property “ embargado''' or sequestrated by them, should their said proceedings bo carried on to a sale.

It is adjudged and decreed, that there bo a judgment of tc nonsuit” against the plaintiffs, in favor of Jj. Dmigneaud, with costs. It is further adjudged and decreed, that the said plaintiffs, Miera, hermanos, recover of the defendant Gaston Darnert, the sum of two thousand six hundred and fifty-live dollars, with five per cent interest from the 21st of June, 1852, until paid, six dollars costs of protest and costs of suit, except those occasioned by making Dmignea/ud a party. It is further ordered, that no execution shall issue upon this judgment, until the plaintiffs shall file in this court, evidence that the proceedings against deiendants or PawoerPs property in Cuba, have been legally dismissed, or until they enter as credit on this judgment, the net amount of the proceeds of the property utt/tibarya&o" or sequestrated by them, should then said proceedings be carried on to a sale.