I concur in the foregoing opinion delivered by Judge Slidell.
Eustis, C. J.Concurring with Mr. Justice Shidell in his statement of the facts of this case and with his view of the law of principal and factor, there are circumstances in it which prevent my assent to his conclusion as to the rights of the respective parties. I consider the law on that subject as correctly expounded by this court in Bludworth’s case; and if I was conscious that my view in this case conflicted in the slightest degree with what was decided in that case, I should mistrust their soundness and refrain from urging them.
In my inquiry as to the legal rights of these parties I assume, for the sake of argument at the commencement, that at the time of the payment of the debt for the engine by Shaw Co. to Goodloe, it was a just and subsisting debt due by Nolan, and that, by the payment the debt has been discharged; so that Nolan owes Goodloe nothing, and Goodloe can in nocourtrecover any thing from Nolan; and unless he is bound to pay Shaw Sf Co. for the engine he gets it for nothing. A case is thus presented which is so repugnant to the most ordinary sense of justice, that the mere statement of it carries refutation with it. Shaw &f Co. then can recover back from Nolan the amount of the debt which they have thus extinguished, and ofwhich extinguishment he has had and continues to havethe benefit, and they can recover on the strictest principles of law. I do not consider that the right of Shaw Sf Co. to recover this money back is at all affected by the mode in which the paymentwas made by them. They were the general agents of Goodloe, and Goodloe was their debtor; the payment was made by giving Goodloe credit for the amount in account; Nolan has nothing to do with this mode of extinguishing the debt; Goodloe does not object to it; the debt is paid ; and between Shaw S¡• Co. and Goodloe the affair it must be conceded is strictly mercantile and correct. Shaio 4' Co. at the time were under no engagements towards Goodloe on account of the mill &c. The payment was made in direct violation of Nolan’s orders, but it is not pretended that Goodloe at the time was insolvent or in questionable credit. Pothier in commenting on the law si quis volente, code lib 2, tit xix de negotiis gestis, leg. 24th, in which the opinion of Paulus & Pomponius is confirmed, that a person acquires no right of action for indemnity against one whose business he has interfered with against his prohibition and will, states that the reason of this decision of Justinian is founded on the peculiar nature of the quasi contract, egotiorum, gestorum, that this contract cannot be pre-supposed where the principal forbids the action of the person, and consequently the action contraria negotiorum gestorum will not lie against the person whose business has been done against his directions, and he then adds. He who has transacted the business of another against his formal prohibition, not having, according to the principles we have laid down, the action contraria negotiorum gestorum to recover his expenses laid out in the business, ought he to lose them when the person whose business has been transacted has had the benefit of the expenditures? I have, for example, become security for a debt of your’s against your orders; I have not the action contraria negotiorum gestorum against you for the recovery of what I have been obliged to pay for you, because I acted in violation of your orders; but ought I to lose the sum which I have paid for your benefit, and which has procured to you the release from your debt? Pothier asks if this would not be repugnant to equity, which permits no -man to be enriched to the detri*48ment of a third person, and which gives the party his action in factum, which action is allowed quoties alia actio deficit. The doctors of the Roman l.aw are divided on this subject; but in the jurisprudence of France, in which the names of action are not heeded, and equity itself is sufficient to produce an obligation and ground of action, there is less difficulty. This action, which is given in cases where the business of one is transacted against his orders, does not give to the party the rights of the negotiorum gesta: he can only recover of the sums which he has expended those which have inured to the benefit of the principal.
Under the Spanish law the rule appears to be to the same effect. Any one may pay a debt for the debtor, without his authority or mandate, although he be ignorant of it or know it or forbid it, and the creditor is bound to receive it and by these means the debtor is discharged according to a text of the Partidas, and he who has made the payment may recover the amount of the debt from the debtor, provided the debt be justly due and that he was necessarily obliged to pay it, according to a text, since the payment was for his benefit, he having been released from the debt according to another text. Curia Phillipica, verbo Paga, fol. 383, § 84. The texts referred to are texts of the Roman law, which it is not necessary to examine after having the opinion of Pothier on the subject.
Our code provides that an obligation may be discharged by any person concerned in it, such as a co-obligeo or security. The obligation may even be discharged by a third person, provided that person act in the name and for the discharge of the debtor, or that if he act in his own name he be not subrogated to the rights of the creditor. Art. 2130.
This article is the 1256th article of the Napoleon Code. It is curious that the same question which divided the Roman jurisconsults has been renewed with increased vigor and zeal by the commentator on the Napoleon Code. Toullier repudiates the construction which Pothier has given to the decision of Justinian, si quis volente. This was one of the fifty decisions given by the Emperor himself on disputed questions of jurisprudence, which refuses an action to a person who has laid out money for another against his orders. This distinguished author considers the decision as conformable to justice and the principles of law, and that it ought to be followed in the jurisprudence of the code.
Troplong has since reviewed the whole controversy and has come to the conclusion that the erroron both sides consists in the too great generality of the rule which eaclr party maintains, and tbatthere are certain cases in which this action must be allowed to a party who has laid out money for the benefit of another, even against his positive orders, by which the latter has profited ; 'but the action is only allowed to the extent of the benefit really accruing to him. 11 Toullier, Droit Civil, § 55. Troplong, Mandat, § 70 to § 86.
1 assumed the justness of the debt which Shaw Co. paid for Nolan, for the sake of argument. I now state that, in my opinion, the justness of the debt is proved beyond all question, and that Nolan had no right whatever to withhold or delay the payment; and that according to the principles of law the claim of Shaw 8f Co. against Nolan for reimbursement, is as clear and unquestionable ns Nolan’s right to recover from his factors Shaw 4- Co., the balance of his .account. On looking into such authorities as are at present within my reach, I ought not omit to cite two cases which I consider as justifying the views I have taken of this case: that of Duncan v. Hampton 6. N. S. 22. and of Child v. Morley, 4. Durnford & East. 611. In the first case, Duncan had paid certain *49Botes drawn by Hampton, under a direct and immediate influence, occasioned by his endorsement of the notes which had been executed in virtue of a void transaction. Hampton had forbid the payment of the notes; but as the payment had inured to his benefit, he was held to be bound to refund the account to Duncan’s executor’s.
I do not understand the case of Child v. Morley as deciding the principle stated in the treatise of Mr. Paley. I understand the Court of King’s Bench only to have decided that the party, under the circumstances stated, could not recover in the action of assumpsit. Indeed, that case appears to presentthe same question as that arising under the Roman and French jurisprudence, and to have been determined not on the principle of right but on the form of action in which the party sought his relief.
In Child v. Morley, it was determined, that a broker who contracts with others for the sale of stock at a future day by the authority of his principal, who afterwards refuses to make good the bargain, cannot, by paying the difference to such third persons, maintain an action on an implied assumpsit against his principal for the amount. This case had been tried before Lord Kenyon, who permitted a verdict to be taken for the plaintiff, and, on giving his opinion in the Court of King’s Bench on a rule taken to set aside the verdict, expressly placed his decision against the validity of the verdict on the form of action, which was that of assumpsit, in which the plaintiff had presented his case. His Lordship observed, “nothing can be more unjust than the defence which has been set up to the whole of this demand; and that consideration may, at first view of the case, have tended to warp my judgment. But I cannot perceive what benefit the defendant can propose to himself by such conduct; for the court have no doubt but that, at all events, the verdict must stand for the ¿£12 10s., the amount of the plaintiff’s commission as broker, under the count for work and labor; and, I think, that some method or other will be found for making the defendant pay the amount of the difference which the plaintiff has honorably settled on account of his principal’s not making good his engagement. But, as to that part of the demand, there is a difficulty in the form of action; and, perhaps, it would have been better framed ex delicto than ex contractu. I admit that no man can, by a voluntary payment of the debt of another, make himself that man’s creditor, and recover from him the amount of the debt so paid; but what pressed on my mind was, that the plaintiff was under some sort of compulsion to pay the differences.” In conclusion, he says, “ considering the difficulties of the case in its present shape, as to the sum recovered for the differences, I think it would be better to frame another action for this part of the demand better adapted to the nature of the case.”
Chancellor Kent, who appears thoroughly to have examined this subject, states the rule to be this: If there be any relation between the parties, a payment without authority may be binding on the person for whose use it was made, if it be under the pressure of a situation in which one party was involved by the other’s breach of faith. My opinion is, that the refusal of Nolan to pay for this engine was a breach of good faith; and that the promise of Shaw 8f Co. not to pay Goodloe, being made on the misrepresentations of Nolan to them, was not binding; and that, under the subsisting relation between all the parties, Shaw is entitled to recover the debt which he has paid, it having inured exclusively to the benefit of Nolan.
If we could determine on these cross claims, my impression is, thatwe would not allow Nolan to receive from Shaw fy Co. the whole of his debt. Frustra, *50pelis quod nux restiturus erit. We would, in determining Nolan’s debt to Shaw Sf Co. for the engine to be justly due, allow Shaw 8f Co. to retain the amount in compensation or extinguishment of their debt; that is, would set off one judgment against the other. I say, we would, I think, be bound thus to adjust the differences between these parties, had Shaw &f Co. presented their claims in a proper reconventional demand. Under the rules of the Code of Practice, art. 329, 374, et seq., I think the connection of Shaw 8f Co.’s claim with the principal demand of Nolan is sufficiently evident to authorize the recovery of their debt by way of reconvention. If such would be the result under proper pleadings, what is the proper course to be pursued as the case is now before us.
My brethren, who have come to the conclusion that Shaw 8f Co. are without remedy in the present suit, consider that the payment made by them cannot be set up as a defence or in compensation to the plaintiff’s action according to the principles of law. Even conceding, for argument sake, that opinion to be correct, I cannot concur in the conclusion that Shaw 8¡- Co. are not entitled to relief from our hands. Under this view of the subject, I assume that Shaw Co. were bound to set up their claim against Nolan for the amount paid Goodlot in a reconventional demand. They have not done so, but alleged it as a matter of defence to the plaintiff’s action; and under this allegation, evidence, establishing the justness of the debt due by Nolan, was received by the court. To the admission of the evidence a bill of exceptions was taken, but I do not think it is properly taken according to the rules of practice, by reason of its vagueness. Here we have both parties at fault, and as, from the evidence before me, I come to the conclusion in favor of the equity of Shaw 8f Co.’s claim, I think the case ought to be remanded for further proceedings, with the privilege of the defendants to file their claim in reconvention; and that the amount thereof stand for so much in satisfaction of the plaintiff’s judgment, the execution of which ought to be suspended until the said reconventional demand be adjudicated upon.
The difference between us resolves itself into a mere question of practice, apparently of little moment, but probably the cause of all this difficulty between these parlies. Nolan seeks one of the courts of Shaw Sf Co.’s domicil to exact the amount due by them as his factors ; but to their demand against him offers to them, as he did to Goodlot, the recourse against him at his domicil in the parish of West Baton Rouge. As I think the demands are connected with each other, and dependant on the relations of Shaw Sf Co., not only as Nolan’s factor, but as agents of both Nolan and Goodlot; and as the factors of the latter, I think Nolan, under our system of laws, is bound to litigate the whole matter before the tribunal which he has selected.
Rost, J.The claim set up by the defendants against the plaintiff being due, it appears to me that the case presents a mere question of practice.
The plaintiff resides in the parish of West Baton Rouge, and defendants in the Parish of Orleans. An act of the Legislature, amendatory of art. 375 of the Code of Practice, provides that when the parties to a suit reside in different parishes the defendant may reconvene for any cause whatever. Session Acts, 1839, p. 164.
Piad this plea been made below, it is clear that the district judge would have been bound to entertain it. The defendants pleaded compensation; and the only question which divides the court is, whether the case shall be remanded to enable the defendants to amend. I think this a proper case for the exercise of the power vested in us, to remand cases when justice requires it.