Nicholls v. Bienvenue

47 La. Ann. 355

• Court: Supreme Court of Louisiana
• Decided: July 1, 1895
• Docket: No. 11,667
• Status: Published

Opinion

The opinion of the court was delivered by

Miller, J.

The defendant appeals from the judgment of the lower court dissolving, for non-payment of part of the price, the sale of a plantation, and for revenues of the property, less the cash payment, taxes, etc., as expressed in the judgment. The judgment was by default rendered on the 2d October, 1893. The appeal was taken in September, 1894.

The assignment of errors in this court is, that there was no authority conferred by the directors of the Citizens Bank on its president to transfer to plaintiff the right to sue for the dissolution of the sale of the plantation involved in this controversy; second, there was no allegation or proof of tender by plaintiff of the notes representing the unpaid price of the cash payment on account of the price paid by the purchaser; third, that if any tender, there was no authority on the part of the tutor of the minors to refuse it without the advice of a family meeting and the authority of the court; fourth, that the action being one of rescission of a contract, the default should have been confirmed on proof administered, and before a jury in pursuance of their verdict.

It appears from the record that the Citizens Bank sold the plantation in 1883 to F. A. Bienvenue, the cash payment being four thousand five hundred dollars, and notes given for the residue of the price aggregating ten thousand five hundred dollars, payable in one, two, three, four and five years. In 1893 the notes, save some interest, being wholly unpaid, the president of the bank transferred the notes to plaintiff, specially subrogating him to the bank’s right to sue for dissolution of the sale. The first assignment denies the right of the president to make this transfer and give this subrogation, no authority of the board of directors being shown.

The president of the bank presumed to be competent for acts of administration, the collection of the notes of the bank, whether by him or any other officer, is to be deemed authorized. In this case the subrogation to the action of the bank for the dissolution of the sale was an incident to the transfer of the notes given for the price of the plantation, and the transfer of the right of action to dissolve was to realize on the notes. It is enough on this branch of the case that under the transfer and subrogation the bank received fourteen thousand dollars on the notes. The bank could not question the subrogation under which it received the plaintiff’s money, and the widow and heirs of the maker of the notes can not deny that which the bank itself could not dispute.

The second assignment is, that no tender was alleged or proved. The suit was on the notes representing the whole of the unpaid price, and the petition alleged the tender of the price paid. The statement of facts is, that the judge remembers a witness testified to the tender, and that another witness testified to the value of improvements. We think this statement sufficient as to the tender.

The third assignment is, that a family meeting was essential to authorize the tutor of the minor heir, one of defendants, to accept or refuse the tender. All that is required of the plaintiff seeking to dissolve the sale made by him is to make the tender to the proper parties. It is no part of his business to call a family meeting in the interest, real or supposed, of the minor heir of ihe purchaser, nor can his tender or right to dissolve be in the least affected if such meeting is not called.

In reference to the fourth assignment, it is enough to say that in our view there was no necessity to call a jury on the issue as to the dissolution of the sale. C. P., Art. 313.

If there was any deficiency In the statement of facts it may well be doubted whether the plaintiff should for that reason be deprived of his judgment by the remanding of the cause. The law gives to the party the right of appeal on a statement of facts, when the testimony has not been taken down. We think this implies a seasonable application when it is in the power of the judge to give that statement. The application should be, primarily, made to the opposite counsel. In this case the judge of the lower court is applied to for the statement, nearly a year after the judgment was rendered. Naturally, the testimony of the witnesses is not remembered with particularity, as he states. We hold the statement sufficient to meet the assignments in this case, but if the statement was deficient we would not feel authorized to disturb a judgment because the appellant had not seen fit to ask for a statement of facts until the memory of the judge had become indistinct. See Code of Practice, Arts. 602, 603; Henri vs. Francincues, 31 An. 856; Lucas vs. Bell, 10 An. 180; Landry vs. College, 7 Rob. 179.

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

Rehearing refused.

The Chief Justice recuses himself in this ease.