Petrovic v. Hyde

Simon J.,

delivered the opinion of the court..

The record shows that in March, 1837, plaintiff, acting in the name of the ordinary partnership of Petrovic & ,Co., composed of himself, J. F. Cortes, and J. Laplace, purchased from defendant, Hyde, ten slaves, for the sum of eleven thousand dollars, for the payment of which no particular time is specified in tire notarial act of sale. In June, following, Cories, one of the partners, executed, in the name of the firm, an act of special mortgage in favor of the vendor, Hyde, on nine of the slaves sold, to secure the sum of nine thousand two hundred dollars, for which Cortes gave a promissory note, signed in the name of said firm, payable sir months after date, to the order of one Cockerill, who was to endorse it, together with two other persons named in the act.

In August, ensuing, an act of partnership was passed between plaintiff, Cortes and Laplace, in which the slaves bought of Hyde are mentioned as belonging to the firm ; said partnership, to have effect from the first of March, preceding. In April, 1838, Cortes and Laplace, sold and transferred to plaintiff, their respective title and interest or portion to the property of the firm, and specially to the nine slaves purchased from Hyde; said Petrovic “ binding and obligating himself to pay and satisfy all claims against the late partnership, resulting from the said purchase from Hyde, assuming the payment of said claim, and putting himself in the place and stead of his co-partners with regard to the same.”

In June, 1838, Hyde obtained an order of seizure and sale of the nine slaves by him sold to the firm, predicating his claim against Petrovic alone, on the above mentioned several acts, and particularly on the ground that Petrovic had assumed the payment of the amount due him for the purchase of the slaves, in an authentic act, and had thereby become his sole and principal debtor. The order of seizure and sale having issued, was levied on the nine slaves sold and transferred to the plaintiff by his co-partners; the sale thereof was advertised, and afterwards stayed by an injunction, which is now the subject matter of this suit. Defendant, Hyde, filed exceptions to the plaintiff’s petition in injunction, and in the meantime, answered to the merits by pleading the general issue, and prayed that said injunction be dissolved, and for judgment against plaintiff for general and special damages.

The District Court djssolved the injunction, and gave judgment against the plaintiff and his sureties, for two hundred and fifty dollars, special damages, and one thousand dollars, being ten per cent, damages o'n the judgment, enjoined; from which judgment plaintiff appealed.

partnership1,"the act of one partner executing a mortgage and of th" partnersLves^wiiichhád been previously {¡dandSMndingj benefit"theFfirm"

Plaintiff seeks to maintain his injunction on the following grounds, which are the same alleged in his petition : 1st. That the obligation and mortgage contracted by Cortes, lhe ttMe of the firm, are not binding on plaintiff, because it was contracted without the consent of his co-partners, and the partnership was not benefited by the transaction.

2d. That the transaction between Cortes and Hyde, was not ratified by the other partners.

3d. That the note signed by Cories is in the shape of a commercial note, payable to the order of a third person, and the transfer of it by endorsement is a matter en pays, and is hot established by authentic evidence.

4th. That plaintiff, by the sale of Cortes and Laplace to him, became the third possessor of two-thirds of the property they previously owned in common, and defendant,Hyde,could not apply for the order of seizure and sale complained of without having previously shown, under oath, that he had complied with the requisites of the law in hypothecary actions.

I. When the plaintiff made the purchase from Hyde, in the name of the partnsrship, he had no special authorization from his co-partners, but his act was afterwards ratified by the articles of partnership. Cortes, as it appears from the evidence, a short time after the purchase, from which the vendor’s privilege necessarily resulted, executed a contract of mortgage in the name of the firm, on nine of the slaves origina|]y g0|d t0 the plaintiff, to secure the sum of nine thousand J 1 . two hundred dollars, the difference being a deduction, and this may be fairly presumed, from the whole amount of the ^rst sa^ej at lhe price or value of the tenth slave, which was perhaps returned to the vendor, in consequence of a defect mentioned in the said original sale. From this contract, the partnership undoubtedly benefited, as further time was granted to pay the amount of the price, and as the partners, far from being placed in a worse situation, had a less sum to pay than the amount stipulated in the first contract.

II. From the act of partnership, and particularly from j.he sale made to plaintiff by Cortes and Laplace, it appears to us clear, that said plaintiff approved and ratified the transaction that had taken place between Corles and Hyde. In this last document, the slaves stated to have been purchased from Hyde are mentioned tobe nine in number, and plaintiff must undoubtedly have been informed then, that only nine slaves belonged to the firm, as a consequence of the transaction which Cortes had undertaken to make with Hyde, for the original purchase made by plaintiff himself, had been for ten. He accepted the sale and transfer of those nine slaves without objection, and nothing shows that any inquiry was ever made by plaintiff, into the reason why the tenth slave was not also transferred to him, with all the other property of the firm. We consider this circumstance of the purchase of nine slaves by the plaintiff, as being those coming from Hyde, undoubtedly made in reference to the act of mortgage executed by Cortes, as amounting to a voluntary approbation, and sufficient ratification of said act.

Where certain slaves belonging to a firm are sold and transferred by two of the partners to the third one, who receives them and undertakes to pay the price, it is a ratification of the previous mortgage and sale of the slaves to the firm by him, and he is bound.

Where a partner buys out the property of the partnership, and stipulates with his co-partners to pay a certain mortgage debt, the creditor has a right to proceed directly against him by order of seizure and sale, as the •principal debt- or, who is personally liable and not entitled to the privilege ofa third possessor : namely, the right of relinquishment.

III. The note was not endorsed for the purpose of being transferred, the endorsers had nothing to transfer, as they were only to be considered in the ligljt of sureties; 12 Louisiana Reports, 476 : This point is certainly untenable.

IV. By the stipulations contained in the act of sale from Cortes and Laplace to plaintiff, he assumed to pay the debt to Hyde, and became thereby the principal debtor. Such stipulations, made not only for the advantage of the co-partners, but also for the benefit of a third person, are binding on the obligor, who, in this case, put himself so entirely in the place of his vendors and former co-proprietors, in relation to the debt due to Hyde, the amount of which he must have ascertained at the time, that the latter had immediately a right to call upon him for said debt. 1 Marlin, JV*. $., 384. Viewed in this light, we cannot consider him as an ordinary third possessor, but surely as one who is personally liable to pay the debt, and who, therefore, cannot enjoy the privileges allowed by law to third possessors of property mortgaged, namely, the right of relinquishment. Louisiana Code, articles 3366 and 3368. The creditor in this case, in sustaining his action of mortgage, based it principally on the stipulations contained in the last act of sale, and thereby accepted them jn their fullest extent; he had a right to do so, and the plaintiff cannot now be allowed to object to the enforcement of the obligations by him contracted in the said act.

The decision of these points, renders it unnecessary to examine the questions relative to the validity and legality of the proceedings had in obtaining and issuing the writ of injunction ; and on the whole, we think the judge a quo, did not err iri dissolving said injunction, and in decreeing general and special damages in favor of the defendant, as it is clear that the writ was wrongfully obtained and sued out.

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