By the court:
Preston, J.
Joseph Fowler departed this life in September, 1850. He died intestate and without heirs in this State. He was possessed of a very large estate in New Orleans, and W. Bogart was appointed curator of his succession.
In July, 1851, he rendered the account of his curatorship and claims from the estate, besides his commisions, the large sum of fifty thousand dollars. The heirs oppose its allowance.
In answer to their opposition, he stated as the grounds of his claim, that it is for constant and continuous and uninterrupted attention to all the business of the deceased, for the whole of the period, from 1843, to the time of his death, the deceased being a large owner of real estate in the city of New Orleans, requiring constant attention to the renting and repairing his houses, collecting the rents, and all other attention and services necessarily incidental to a large mass of such property. The deceased was also a capitalist, dealing largely in money, making loans on mortgage, and discounting notes to a large amount, all of which was attended to, solely and exclusively by the respondent, constantly and unremittingly, his counting room being the place where all the books, papers, and valuables of the deceased were deposited.
His witnesses in support of the claim are, R. J. Palfrey, the cashier of the bank in which the deceased kept his personal assets, consisting, at his death, of good bills, receivable notes and mortgages, amounting to upwards of eight hundred thousand dollars; J. K. Smith and L. F. Generes, extensive money brokers, who had large transactions with him; Samuel J. Peters and W. H. Avery, both'presidents of banking corporations, and old established merchants of New Orleans; Lavillebeuve, a merchant and large property holder; J. W. Montgomery, a large capitalist,- and who appears to have been intrused [210]*210with an olographic will of the deceased, but which was destroyed; Mr. Qrym.es, his confidential counsellor; and Dr. Rushton, his physician.
All these gentlemen were well acquainted with the deceased and his business, the relations between him and the claimant, and, in general, the means by which his vast fortune was accumulated. Their testimony makes out fully and satisfactorily, the grounds stated by Mr. Bogart, as the basis of his claim.
The deceased laid the foundation of his fortune by great activity, and energy and good judgment in mercantile operations. Retiring with a considerable capital, and uncommon sagacity and knowledge of men and things, he selected the claimant as his agent, through whom still to operate with his capital on the bills, notes, and other evidences of credit, so exclusively the medium of our commerce. That his selection was fortunate, is proved by the result; the ball was kept rolling and increasing in magnitude, to the hour of his death. While a different selection might have proved disastrous, from circumstances peculiar to Fowler, to which some of the witnesses allude.
His physician says, he was in bad health during the whole of the seven years, for which compensation is claimed; that he had fallen into such a disposition, that he would walk a mile to save a dime, but would not cross the street to make thousands. Although the remark of the witness was probably intended merely to illustrate his character, those acquainted with the effects of avarice upon age and infermity, know that it is literally true, rather than amere illustration of the character of a miser; and yet he was daily making large sums through the instrumentality of his agent. He was, at the same time, saving dimes by denying himself the comforts and even necessaries of life, as proved by the physician; whilst he was on the eve of losing a very large sum, as proved by his counsel, from mere listlessness, though warned of the danger, and which was saved by the promptness and energy of his agent when it was communicated to him.
In the latter part of his life, there were physicial inabilities which rendered the services of the agent the more invaluable to him. At one time he was confined six months by sickness. He became intemperate and was hypochondriacal, saying he would die in a week, when, but for the effect of intemperance on his debilitated and irritable system, he would possibly have lived to an old age. He was also often absent during the summers.
The aggregate testimony of the claimant’s witnesses shows, that the deceased referred all his customers and business to him, and kept it all in his counting house, and that whether he was sick or well, present or absent, the agent was, to use the expression of one of the witnesses, substantially his curator for three years before his death. These gentlemen, men of the highest standing in the community, estimate his services as worth fifty thousand dollars to Fowler, during the seven years. Mr. Urquhart, an extensive agent for absent capatalists and property holders, furnished the court with specific data upon which he acts, which appear very reasonable, and which would fully justify the demand of the claimant.
On the other hand, the heirs show two very large operations, amouuting to $130,000, which Mr. Fowler transacted personally. They show that he discounted the paper of the mercantile firm of the agent, to the amount of upwards of $200,000, and that his credit gave them great facilities in the commercial world, and patronage from the planters of our country. They urge that the agent was obliged to avail himself of the benefit of the bankrupt law, [211]*211and was then indebted to the deceased in a sum of $60,000, which there is a moral obligation upon him to pay; and that he has received $30,000 for commissions, as curator of the estate.
There was no contract between the parties, nor do we think any intention on behalf of the claimant, to ask payment for his services while their relations existed. But we do firmly believe, from their relations and the evidence, that the one intented, and the other expected, that if their relations terminated, a very liberal reward would be made for those services. The nature and character of aged avarice rendered it morally impossible, that that reward would be made during life, and the early and long continued friendship of the parties, and great reciprocal kindness, rendered it impossible to ask it until Mr. Fowler’s death, or other separation.
Can the compensation then be legally demanded from the heirs of the deceased? The general rule of our code is, that a mandate is gratuitous; but is it so, if the nature of the business or conduct of the parties show, that no such thing was intended or expected. The contrary is the well settled jurisprudence of France, under a code very similar in its provisions to our own. In preparing a commercial code for our State, our distinguished jurisconsults expressly engrafted the principle into their project, and it is so perfectly conformable to every man’s sense of justice, that we feel bound to act on the principle; and, in fact, did adopt it in the case of Waterman v. Gibson, 5th Ann. 673. The cases of Jacob v. The Ursuline Nuns, 2 M. R., and Elkin’s Heirs v. His Executor, seems to recognize the principle, that if it. could be reasonably concluded that compensation was contemplated by both parties, it should be made.
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By the court:
Preston, J.
Joseph Fowler departed this life in September, 1850. He died intestate and without heirs in this State. He was possessed of a very large estate in New Orleans, and W. Bogart was appointed curator of his succession.
In July, 1851, he rendered the account of his curatorship and claims from the estate, besides his commisions, the large sum of fifty thousand dollars. The heirs oppose its allowance.
In answer to their opposition, he stated as the grounds of his claim, that it is for constant and continuous and uninterrupted attention to all the business of the deceased, for the whole of the period, from 1843, to the time of his death, the deceased being a large owner of real estate in the city of New Orleans, requiring constant attention to the renting and repairing his houses, collecting the rents, and all other attention and services necessarily incidental to a large mass of such property. The deceased was also a capitalist, dealing largely in money, making loans on mortgage, and discounting notes to a large amount, all of which was attended to, solely and exclusively by the respondent, constantly and unremittingly, his counting room being the place where all the books, papers, and valuables of the deceased were deposited.
His witnesses in support of the claim are, R. J. Palfrey, the cashier of the bank in which the deceased kept his personal assets, consisting, at his death, of good bills, receivable notes and mortgages, amounting to upwards of eight hundred thousand dollars; J. K. Smith and L. F. Generes, extensive money brokers, who had large transactions with him; Samuel J. Peters and W. H. Avery, both'presidents of banking corporations, and old established merchants of New Orleans; Lavillebeuve, a merchant and large property holder; J. W. Montgomery, a large capitalist,- and who appears to have been intrused [210]*210with an olographic will of the deceased, but which was destroyed; Mr. Qrym.es, his confidential counsellor; and Dr. Rushton, his physician.
All these gentlemen were well acquainted with the deceased and his business, the relations between him and the claimant, and, in general, the means by which his vast fortune was accumulated. Their testimony makes out fully and satisfactorily, the grounds stated by Mr. Bogart, as the basis of his claim.
The deceased laid the foundation of his fortune by great activity, and energy and good judgment in mercantile operations. Retiring with a considerable capital, and uncommon sagacity and knowledge of men and things, he selected the claimant as his agent, through whom still to operate with his capital on the bills, notes, and other evidences of credit, so exclusively the medium of our commerce. That his selection was fortunate, is proved by the result; the ball was kept rolling and increasing in magnitude, to the hour of his death. While a different selection might have proved disastrous, from circumstances peculiar to Fowler, to which some of the witnesses allude.
His physician says, he was in bad health during the whole of the seven years, for which compensation is claimed; that he had fallen into such a disposition, that he would walk a mile to save a dime, but would not cross the street to make thousands. Although the remark of the witness was probably intended merely to illustrate his character, those acquainted with the effects of avarice upon age and infermity, know that it is literally true, rather than amere illustration of the character of a miser; and yet he was daily making large sums through the instrumentality of his agent. He was, at the same time, saving dimes by denying himself the comforts and even necessaries of life, as proved by the physician; whilst he was on the eve of losing a very large sum, as proved by his counsel, from mere listlessness, though warned of the danger, and which was saved by the promptness and energy of his agent when it was communicated to him.
In the latter part of his life, there were physicial inabilities which rendered the services of the agent the more invaluable to him. At one time he was confined six months by sickness. He became intemperate and was hypochondriacal, saying he would die in a week, when, but for the effect of intemperance on his debilitated and irritable system, he would possibly have lived to an old age. He was also often absent during the summers.
The aggregate testimony of the claimant’s witnesses shows, that the deceased referred all his customers and business to him, and kept it all in his counting house, and that whether he was sick or well, present or absent, the agent was, to use the expression of one of the witnesses, substantially his curator for three years before his death. These gentlemen, men of the highest standing in the community, estimate his services as worth fifty thousand dollars to Fowler, during the seven years. Mr. Urquhart, an extensive agent for absent capatalists and property holders, furnished the court with specific data upon which he acts, which appear very reasonable, and which would fully justify the demand of the claimant.
On the other hand, the heirs show two very large operations, amouuting to $130,000, which Mr. Fowler transacted personally. They show that he discounted the paper of the mercantile firm of the agent, to the amount of upwards of $200,000, and that his credit gave them great facilities in the commercial world, and patronage from the planters of our country. They urge that the agent was obliged to avail himself of the benefit of the bankrupt law, [211]*211and was then indebted to the deceased in a sum of $60,000, which there is a moral obligation upon him to pay; and that he has received $30,000 for commissions, as curator of the estate.
There was no contract between the parties, nor do we think any intention on behalf of the claimant, to ask payment for his services while their relations existed. But we do firmly believe, from their relations and the evidence, that the one intented, and the other expected, that if their relations terminated, a very liberal reward would be made for those services. The nature and character of aged avarice rendered it morally impossible, that that reward would be made during life, and the early and long continued friendship of the parties, and great reciprocal kindness, rendered it impossible to ask it until Mr. Fowler’s death, or other separation.
Can the compensation then be legally demanded from the heirs of the deceased? The general rule of our code is, that a mandate is gratuitous; but is it so, if the nature of the business or conduct of the parties show, that no such thing was intended or expected. The contrary is the well settled jurisprudence of France, under a code very similar in its provisions to our own. In preparing a commercial code for our State, our distinguished jurisconsults expressly engrafted the principle into their project, and it is so perfectly conformable to every man’s sense of justice, that we feel bound to act on the principle; and, in fact, did adopt it in the case of Waterman v. Gibson, 5th Ann. 673. The cases of Jacob v. The Ursuline Nuns, 2 M. R., and Elkin’s Heirs v. His Executor, seems to recognize the principle, that if it. could be reasonably concluded that compensation was contemplated by both parties, it should be made.
Now, in addition to the testimony of his witnesses, a book is before the court, showing the accounts kept by the claimant of the transactions of the deceased, in the purchase of notes, bills and mortgages, and collections of his rents. It is well kept, and shows the transactions to have been of the largest character. The mental and manual labor of keeping the accounts, making the calculations of interest, securing the investments and collecting the principal and interest, making the rent rolls and bills, and collecting the rents, keeping the property in repair, insuring it, and securing good tenants, must have been so considerable, that no man could think of giving or receiving it for nothing.
Whilst, however, the books show the labor and responsibility of the agency to have been great, the evidence convinces us, that the value of the claimant’s services to the deceased consisted, principally, in the skill and judgment with which he managed his immense business, so that it produced such a wonderful result. The business being, as the deceased stated over and over again, intrusted principally to that skill and judgment, or, as he expressed '■ himself, more than to his own. The agent did not give advice alone, as contended, but exercised his own judgment and moral responsibility in investing the funds of his principal. He is not to be considered a mere clerk, of whose salaries Mr. Robb, Mr. Peters and Mr. Avery, give an account.
It does not appear that the relatives and heirs of the deceased, during these seven years, had any connection with, or influence over him, or extended to, or received any kindness from him. On reading the testimony in this record, they must see and feel that their deceased relative has received from a stranger to them, the greatest kindness and services, which relieved him from the burdens of business, for which he was physically inadequate, and probably protracted his sickly, intemperate, and irritable life; thus increasing by time alone their [212]*212vast inheritance, and, thereby, that the toil, skill and judgment of that stranger ha£j ]jeen invaluable to them, when separated from their relative by a no doubt unreasonable aversion, which is proved. We do not think the laws interpose any obstacle to his demand for a reasonable compensation from them.
As already mentioned, they contend, that prominent facts proved by them, justify their opposition to the claim, even if. well founded in law.
They say, that in applying for the curatorship of the estate, he represented that there were no creditors, and could not therefore be a creditor himself. He was not; he owed the estate far more, immediately or contingently, than he could possibly expect to recover for his services.
They contend, that the claimant availed himself of the benefit of the bankrupt act of 1841, being a large debtor of the deceased, and that there is a moral obligation to make payment, and the debt should be compensated against his services. The moral cannot be opposed to the legal obligation of the heirs to compensate his services. ■ Besides, by an examination of the testimony, we find that the deceased realized nearly his whole debt and interest, out of property purchased at the bankrupt sale. It is notorious, that large mortgagees on large property, were enabled to purchase it at the bankrupt sales for small sums, and did so, to a great extent, to avoid the expenses of the sales for large prices. The property purchased by the deceased from the assignee of the claimant, was placed also under his charge, and, by his skill and management, the debt was realized by the deceased, so that perhaps the moral obligation to pay it is extinguished.
The heirs say, that the claim should not be allowed, because the claimant obtained the curatorship of the estate of the deceased, and thereby realized in a single year thirty thousand dollars out of the estate in commissions, as curator. But these commissions are allowed by law, as the legal compensation for the trouble and responsibility of administering the estate, and are not dependant at all upon the relation of debtor and creditor between the curator and the estate.
All the heirs were absent when Fowler died. It was in the middle of what is called our sickly season, when strangers are deterred from coming to New Orleans. The estate was vacant, and immediate action necessary for its preservation. Circumstances necessarily subjected the heirs to the expense of the commissions, whether the claimant administered or not. If he had not, persons less qualified by intimate relations with the deceased, would have administered, and successfully claimed the same commissions.
It is said, the credit given by the deceased to Mr. Bogart and his house, amply compensated him for all his services. The services are palpable, and susceptible of legal appreciation by testimony. The credit given by a business mutually beneficial, is not susceptible of precise appreciation in money. The claimant contends, and proves by the books, that the deceased received as high interest for the loans to himself and house, as from other customers, and that, to his knowledge, his investments with them were equally secure.
Still, the evidence satisfies us that this matter should be well considered, in fixing the compensation to be allowed the claimant. And for two other striking and many minor reasons, we do not feel authorized to adopt, as the measure of his remuneration, the large estimate made by his witnesses'.
1. The claimant might have insisted, which in all cases is the true course, on a precise and definite understanding with his employer. He being a man, not only not generqus, but penurious, would' in all probability have insisted on a [213]*213small compensation, although payable only when their relations should terrninate; and having right to do so, we must consider his views, as well as those of his agent.
In the next place, notwithstanding the judicious and successful administration of Fowler’s property, yet the agent was able to devote all the time necessary to carry on the large mercantile business of his own house, which was greatly aided in its operations by the discounts of Fornler, although based upon the principle of interest.
Without entering into further minutóte, upon a full consideration of the whole record, we should have come to the same conclusions with the District Judge, and therefore affirm his judgment, with costs.