Layton v. Hennen

3 La. Ann. 1

Opinion

The final judgment was pronounced by

King, J.

*

The plaintiffs, as ¡cutors, have instituted this action to compel the defendant, Hennen, to accept a transfer of twenty shaves of the capital stock of the Carrollton Railroad and Banking Company, adjudicated to him at a probate sale of a part of the effects of Robert Layton, deceased, and to pay the price of adjudication. The defendant admits that he purchased twenty shares of the stock of the Carrollton Bank, at public sale, but offers as a reason why he is not bound to comply with the terms of the adjudication that, the auctioneer represented to him and to other bystanders at the sale, that the stock offered belonged to a class much more valuable than that which was adjudicated. To understand the nature of this defence, it is neeessaiy to state that there were three classes of stock of the company. The first consisted of shares paid in full, of the original subscription, under the act of 1833. The second, of shares of the stock created by the act of the 1st April, 1835, which, under a resolution of the board of directors, known as “ Millauclon’s resolution,” were paid in full by anticipation. The third, of shares of the stock created by the last recited act, on which only $50 had been paid.

A controversy arose between Millaudon and the bank, in relation to the stock of the second description, which was finally determined in the Supreme Coni't. The case is reported in the 3d vol. of Robinson’s Reports, p. 488. It is contended that the decision in that case, recognises in the holders of stock, paid in full under Millaudon7.» resolution, rights superior to those of the owners of stock paid in full under the original act of incorporation, on the final liquidation, of the bank’s concerns; and that the defendant was induced by the representa^ tions of the auctioneer, to believe that he was ¡mrciiasing full paid stock under Millaudon7s resolution, whereas the stock adjudicated .to him belonged to the-first class. The judgment of the lower court was in favor of the plaintiffs, and. the defendant has appealed.

It is unnecessary to enquire whether the alleged difference between the two-descriptions of full, paid stock has been recognised in the case- of Millaudon v.The New Orleans and Carrollton Railroad Company. The stock offered was-described in the advertisements as “fall paid stock,77 and was really such. If the fact that there were two kinds of “full paid stock” rendered the description-indefinite, the purchaser should have addressed- his enquiries- for further information to the executors, who alone were authorised to give it. The-advertisements are binding upon both the vendor and the purchaser, and neither party can insist on any thing that was said by the auctioneer at the time of sale, in any respect varying or adding to the printed conditions oi-the description, of the object offered. Babington on Auctions, Law Lib. 18. 19 La. 18. The information in the present instanee was asked of the auctioneer, in whom* the law recognises no authority to give it, and who is not shown to have been authorised by the executors to furnish it.

In the absence of an express authority from the executors,, no error caused by the representations of the auctioneer at variance with the printed advertisements, will vitiate the sale.

Slidell, J., adhered to the opinion first pronounced.*

Judgment affirmed.

Eustis, C. J., did not sit in this caso, having been of counsel.