Wartelle v. Hudson

8 La. Ann. 486

• Court: Supreme Court of Louisiana
• Decided: September 15, 1852
• Status: Published

Opinion

Rost, J.

The plaintiff, acting as agent of Fremont and wife, who reside out of the State, sold four slaves to Fergus Hathorn, one of the defendants, and received, in part payment, a note subscribed by the other defendant, John P-. Hudson, payable to the order of Hathorn and Beeves, and endorsed by Hathorn in his own name. This note was protested at maturity, and the plaintiff now seeks to recover the amount of it from the drawer. The petition also prays for judgment against Hathorn, and that the slaves sold may be subjected to the mortgage retained upon them to secure the payment of the price.

Hathorn made no defence. Hudson pleaded the general issue, that the plaintiff had no authority to sell the immovable property of Fremont and wife, and that Hathorn was likewise without authority to transfer a note belonging to the firm of Hathorn & Peeves for his private benefit.

There was judgment against the defendants in solido, and John P. Hudson has appealed.

Had the defendant Hathorn set up the defence of the appellant, it would have been a serious question whether the power of attorney, under which Wcvrtelle acted, authorized him to sell the slaves of his principles; but as he has not raised that objection, it is clear that his debtor had no capacity to raise it. He owes the amount of the note, and is bound to pay it to the assignee of his creditor, who is a party to the suit, and does not object to the payment.

The defective endorsement on the note was cured by the subsequent declaration of Peeves, that Hathorn was fully authorized to use the note as he did; the date of that declaration is immaterial.

There was no obligation in solido between the defendants, but as they are each hound for the whole amount of the judgment, the objections to its form are mere verbal criticisms and do not authorize the reversal of it.

The judgment is affirmed, with costs.