Moses Loeb & Co. v. Godchaux & Silbernagel

2 McGl. 140

• Court: Louisiana Court of Appeal
• Decided: July 1, 1884
• Docket: No. 343
• Status: Published

Opinions

Kelly, J.

The material facts averred in the petition of the plaintiff's in this action are, in substance, that they are wholesale merchants of this City; that on or about the 8th of October, 1883, F. N. Wharton, a retail dealer of this City, in goods of the kind in which plaintiffs are wholesale dealers, applied to them to buy goods and became their customer; that, not knowing him, they applied to the firm of Godehaux & Silbernagel, of this City, for information touching his integrity and financial ability, and were told by them “ that he was good and honest,” “ meaning,” says the petition, “ that he would act with mercantile honor towards petitioners and was able to pay for what he purchased that, acting on the said representation of Godchaux & Silbernagel, they sold and delivered to said Wharton goods and merchandise, described in bills annexed to the petition, of the value of $165.77; that when said representations were made by Godchaux & Silbernagel, the said Wharton was indebted to them in the sum of $1200, which fact was unknown to petitioners, and that information thereof was withheld by the said firm,

That, thereafter, in January, 1884, “the said Godchaux & Silbernagel went to the store of said Wharton, themselves or by their clerks, agents, or employés, and took therefrom without judicial proceedings and against the protest of said Wharton, all of the goods, wares and merchandise in said store, including the goods sold by petitioners to said Wharton, as aforesaid, and which, to the value of $165.77, was at that time and still remains due, owing and unpaid, notwithstanding amicable demand on said Wharton; that said Godchaux & Silbernagel sold the said goods and appropriated the proceeds to their own use, including the goods sold by petitioners to said Wharton, which were and are still unpaid for, and that said Wharton is now and was, owing to the conduct of said Godchaux & Silbernagel,. insolvent,” — by reason of which alleged facts, the petition claims that the firm of Godchaux & Silbernagel are responsible to the petitioners for the value of the goods sold by them to Wharton, and the relief prayed for is a money judgment in their favor against Godchaux & Silbernagel, for the amount of the bills of goods sold to Wharton, to-wit., one hundred and sixty-five dollars and seventy cents, and costs. Wharton was not made a party to the suit.

To this petition, Godchaux & Silbernagel excepted, on the ground, that it disclosed no cause of action against them; which exception, after having been referred to the merits, was overruled in the Court below, and judgment rendered in favor of plaintiffs and against defendants for the sum of seventy dollars, interest and costs.

From this judgment the defendants have appealed and have assigned here as error, apparent on the face of the record, the overruling of their exception of no cause of action.

The petition certainly does not state any cause of action of a revocatory character. It does not allege or ask for the setting aside of any fraudulent contract whereby property of their debtor, Wharton, was fraudulently or illegally transferred by him to Godchaux & Silbernagel; the averment is, that the property of Wharton, including that sold to him by petitioners, was taken possession of by Godchaux & Silbernagel, and sold, and the proceeds applied to their own uses, without judicial process and against the protest of Wharton; the averment is of a taking and conversion of the property of Wharton against his will, and tortious, as to him. Furthermore, if the action could possibly be considered as of the revocatory class, the petition — in that it neither avers that the claim against \yharton is liquidated by judgment nor seeks to have it liquidated by judgment against him in this action, to which he is not made a party — would be fatally defective.

Nor can the petition be considered as sufficient^ stating a cause of action, entitling the petitioners to recover the amount of the debt alleged to be due them by Wharton, from Godchaux & Silbernagel, as sureties or guarantors of Wharton. Even an express promise to pay, or to be liable for the debt of another,— and no such promise is alleged by Godchaux & Silbernagel to the plaintiffs, to pay or be liable for the debt of Wharton, — will not support an action unless the alleged promise be in writing, signed by the party to be charged, or by his agent or attorney in fact thereto duly authorized in writing, of which there is no pretence in the present case.

Nor does the petition state that the goods were sold to Wharton, upon the credit of Godchaux & Silbernagel, nor upon any other representation by them to plaintifls than the statement made in answer to plaintiffs’ inquiry, that, in their opinion, Wharton was “ good and honesta statement which does not necessarily bear the meaning imputed to it in the petition, and which, if it did bear that meaning, would not make the defendants liable to the plaintiffs, as sureties or guarantors of the debt thereafter contracted by Wharton. Nor does the fact that the defendants, not being asked’ (for it is not averred that they were), did not volunteer to inform the plaintiffs that they, themselves, had given credit to Wharton, in his business, to the amount of twelve hundred dollars, tend in any way to render them liable for the credit of one hundred and sixty-five dollars and seventy-seven cents thereafter given to Wharton by the plaintiffs. The fact that the defendants had themselves trusted Wharton to so large an extent, of itself shows, by their action, that they considered him good and honest, as the petition alleges they represented him to the plaintiffs to be.

The goods which were sold by the plaintiffs to Wharton, though sold on credit, became the goods of Wharton, from the time of the sale, subject in his hands to the vendor’s privilege in favor of the plaintiffs. The petition avers that the goods were, without judicial process and against the protest of Wharton, taken possession of and sold and the proceeds converted to their own use by Godchaux & Silbernagel. Taking these averments, for the purposes of the exception, to be true, they do not state a cause of action entitling the plaintiffs to recover of the defendants, either the goods sold and delivered to Wharton, or the proceeds or the value of those goods. Whatever right of action could arise from the alleged tortious taking and conversion of the goods of Wharton would be in Wharton, and not in the vendors of the goods to Wharton. To any action by such vendors to enforce, against the property sold or its proceeds alleged to have passed into the possession of third persons, a vendor’s lien and privilege to secure the debt alleged to be due by Wharton to the vendors for the price of the goods, Wharton would be an indispensable party; and he is not made a party by the petition excepted to.

In no aspect of the case stated by the petition does there appear to be any legal ground to entitle the plaintiffs to the recovery prayed for, or to any recovery of the defendants; and it is therefore considered that the judgment appealed from is erroneous, in overruling the exception of no cause of action, and consequently erroneous in all other respects.

Wherefore, it is ordered, adjudged and decreed that the judgment appealed from herein be reversed and avoided, and that there be judgment here in favor of the defendants and appellants, Godehaux & Silbernagel, and against the plaintiSs and appellees, Moses Loeb & Co., that the exception of no cause of action be maintained and the suit be dismissed; and that the plaintiffs and appellees be condemned to pay all costs of both Courts.