Marmiche v. Commagere

6 Mart. (N.S.) 657

• Court: Supreme Court of Louisiana
• Decided: April 15, 1828
• Status: Published

Opinion

Martin, J.

delivered the opinion of the court. The plaintiff states he sold a quantity of coffee to the defendants, for which he took their note; that before its maturity they stopped payment, and the coifoe is in the hands of Ducayet &, Domingon, in whose stores the defendants placed it, to be sold at auction, for their, the defendant’s account; the coffee was sequestered and bonded by Ducayet. &, Do-mingon, who intervened, claiming the coffee as their own, alleging that they had bought, and bona fide paid for it

There was a verdict and judgment for the plaintiff, and the intervening party appealed.

His counsel has drawn our attention to a bill of exceptions taken by him to the opinion °f the parish judge, who denied him the right of opening the case, which was claimed under the Code of Practice, art. 389, 393, on the ground that the intervening party is, in the392d article, declared to be a plaintiff

It does not appear to us that the parish fcourt erred. It is not uncommon that there should be more than one party plaintiff in a case. In some all are plaintiffs and defendants, as in the case of an opposition to a tableau of distribution. All, then, cannot open the case, and the opening belongs to him who is emphatically the plaintiff, i. e. he who instituted the suit.

A receipt of the insolvents for the price of the coffee having been read in evidence, not-withstandingtheobjectionof the plaintiff, he, the better to disprove the contents of the receipt, offered the books of the insolvents, the introduction of which was objected to by the intervening party, and the plaintiff offered to admit in evidence the books of the intervening party. The court admitted the insolvents’ books in j evidence, and the counsel for the intervening ' party took a bill of exceptions. J

We think the judge a quo did not err. The| fairness of the purchase by the intervening par-⅝ ty was at issue; it could net be fraudulent irtjj the vendee, unless it was in the vendor. Fraud 7 in the latter was therefore to be proven; and' for this purpose his books were evidence, al- . though they could afford no legal proof of fraud in the vendee.

Canon for the plaintiff, Seghers for the defendant. ,

On the merits we think the verdict ought' not to be annulled.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.