Lagay v. Chieusse

5 Rob. 132

Opinion

Bullard, J.

*

This action was commenced by an attachment, on an affidavit of the plaintiff, that the defendant, who resided in Mobile, was indebted to him in the sum of $1277 28, for merchandize sold and delivered. On the following day, the petition was filed, which set forth, that the plaintiff, between the 17th of May and the 6th of June, 1833, sold and delivered to the defendants, merchandize to that amount; that $1202 28 of the amount was delivered to the defendant, to be sold by him for account of the petitioner, and the profits to be equally divided ; but that he took the goods on his own responsibility, at all hazards, and has always refused to account for the same, though demanded; and that the balance of the account was for goods sold to the defendant for his personal use. The petition concludes with a prayer for judgment for the amount of his claim, $1277 28, with interest and costs.

The answer avers, that the defendant, being about to depart for Tampico, was requested by the plaintiff to take charge, as consignee and agent, of a lot of goods, to be landed at that place, and sold for account of the plaintiff; that the goods, until sold, were to remain at the risk of the plaintiff; that they were accordingly landed, but onty a part sold, being unfit for the Mexican market; that according to the plaintiff’s order, he delivered over to one Eidmann, all the goods remaining unsold. The defendant next sets forth disbursements made by him, and pleads in reconvention; but no other part of the answer need now be noticed.

It is to be remarked, that this answer contains no exception to the form of the action; but afterwards, the defendant’s counsel filed what he calls a peremptory exception, to wit, that on the face of the petition, (after the choice of the plaintiff,) he is sued for goods, the profits of which were to be divided between the par ties; that the contract, as averred, created a partnership; and that he cannot be sued for any special sum, arising under said partnership, before being sued to render an account.

The following is a literal translation of the defendant’s receipt, upon which this action is founded : “ I acknowledge to have received of Mr. Paul Lagay, of New Orleans, $1202 28, in merchandize, to be sold to the best of his interest, and to participate in the profits with him ; which merchandize, I take upon my re sponsibility, whatever may happen.”

The petition sets forth the contract, such as it was, and asks for judgment; not for profits, but only for the capital. There is no prayer for a judgment in the alternative. The character of the action, we have often said, depends upon the prayer for judgment. It is clear, that according to the conclusion of the petition, the plaintiff could not, in this action, have had judgment for a rendition of accounts, and a share of profits. He confined his demand to a recovery of the capital advanced by him, which the defendant undertook to guaranty. The court, therefore, in our opinion, erred in compelling the plaintiff to elect between two remedies, and then dismissing the suit because he chose the one not originally demanded. The bill of exceptions to this proceeding, upon which the plaintiff and appellant relies, was, we think, well taken.

It is, therefore, ordered and adjudged, that the judgment of the District Court be reversed ; that the exception of the defendant be overruled; and the case be remanded for further proceedings, according to law; and that the defendant pay the costs of this appeal.

Morphy, J., having been of oounsel in this case, did not sit on its trial.