CRAGIN
v.
LOVELL, Executor.
SAME
v.
SAME.
Supreme Court of United States.
Argued together November 1st, 1883. Decided November 12th, 1883. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA. APPEAL FROM THE SAME COURT.*196 Mr. J.D. Rouse and Mr. William Grant, for Cragin.
Mr. Joseph P. Hornor, and Mr. W.S. Benedict, for Lovell.
*198 MR. JUSTICE GRAY delivered the opinion of the court. After reciting the facts as above stated, he continued:
It is quite clear that the bill in equity was rightly dismissed, because it contains no allegation that Cragin did not know, before the judgment against him in the suit at law, that the plaintiff in that suit alleged that he was a citizen of Louisiana. If he did then know it, he should have appeared and pleaded in abatement; and equity will not relieve him from the consequence of his own negligence. Jones v. League, 18 How. 76; Crim v. Handley, 94 U.S. 652. The decree in the suit in equity must therefore be affirmed.
But it is equally clear that the judgment at law is erroneous. The petition shows no privity between the plaintiff and Cragin. It alleges no promise or contract by Cragin to or with the plaintiff. The mere description of the notes received by the plaintiff, as "notes of Fisk," does not show that they were not negotiable instruments, but on the contrary, in the connection in which it is used, and applied to notes given for the purchase money of land and secured by mortgage thereof, designates (as was assumed by both counsel at the argument) negotiable promissory notes, bearing no name but that of Fisk as maker; and on such notes no action will lie against any other person. Nash v. Towne, 5 Wall. 689, 703; Williams v. Robbins, 16 Gray, 77; In re Adansonia Fibre Co., L.R. 9 Ch. 635; Daniels v. Burnham, 2 La. 243, 245. The case does not come within the decisions in Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, in Metcalf v. Williams, 104 U.S. 93, and Hitchcock v. Buchanan, 105 U.S. 416, in each of which the name of the principal appeared upon the face of the note.
If the action is treated, not as an action upon the notes *199 themselves, but as an action to recover the amount of the notes, by reason of a subsequent agreement of Cragin to pay them, the plaintiff fares no better. The only allegations touching the relation of Cragin to these notes are, that, in a suit by him against Fisk, he alleged that Fisk in purchasing the land acted merely as his agent, and that he owned the land and was liable and ready to pay for it; and that he was thereupon adjudged to be the owner of the land and took possession thereof. If this amounted to a promise to any one, it was not a promise to the plaintiff, nor even a promise to Fisk to pay to the plaintiff the amount of the notes, but it was, at the utmost, a promise to Fisk to pay that amount to him, or to indemnify him in case he should have to pay it. It is therefore not within the provisions of the Louisiana Codes, cited in argument;[*] and the defendant is liable to an action at law by Fisk only, and not by the plaintiff. National Bank v. Grand Lodge, 98 U.S. 123; Exchange Bank v. Rice, 107 Mass. 37; M'Cauley v. Hagan, 6 Rob. La. 359. The final allegation, that by reason of the causes aforesaid, the defendant is indebted and liable to the plaintiff, is a mere conclusion of law, which is not admitted by demurrer or default. Hollis v. Richardson, 13 Gray, 392.
The judgment, having been rendered on default upon a declaration setting forth no cause of action, may be reversed on writ of error. McAllister v. Kuhn, 96 U.S. 87; Hollis v. Richardson, above cited; Louisiana Bank v. Senecal, 9 La. 225. This court, on reversing a judgment of the circuit court, may *200 order such judgment for either party as the justice of the case may require. Rev. Stat. § 701; Insurance Cos. v. Boykin, 12 Wall. 433. In the case at bar, the order, following the precedent of Slacum v. Pomery, 6 Cranch, 221, will be that the judgment below be reversed, and the case remanded with directions that judgment be arrested.
Ordered accordingly.
NOTES
[*] "A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked." Louisiana Civil Code of 1870, art. 1890.
"An equitable action is that which does not immediately arise from a contract, but from equity in favor of a third person, not a party to it, and for whose benefit certain stipulations have been made; thus, if one stipulated in a contract entered into with another person, and as an express condition of that contract, that this person should pay a certain sum on his account, or give a certain thing to a third person, not a party to the act, that third person has an equitable action against the one who has contracted the obligation, to enforce the execution of the stipulation." Louisiana Code of Practice, art. 35.