Weintz v. Kramer

Decision Date01 January 1892
Docket Number10,911
Citation44 La.Ann. 35,10 So. 416
CourtLouisiana Supreme Court
PartiesMRS. MARIA WEINTZ ET AL. v. PETER J. KRAMER ET AL

APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

A. L Tissot and Henry P. Dart, for Plaintiffs and Appellees.

A. J Lewis, W. S. Benedict, H. Heidenhain and E. Warren, for Defendants and Appellants.

OPINION

FENNER J.

The plaintiff was a legatee of the late Frank P Burger, who bequeathed her two lots of ground, with the improvements, in New Orleans.

Burger's will was taken in nuncupative form by public act before Peter J. Kramer, Esq., notary public. The will was subsequently attacked by certain of the heirs, and the same was annulled by this court upon the express ground "that the notary who executed it failed to state that the attesting witnesses were residents of the parish of Orleans, the place where the same was executed. See 41 An. 1153.

Being ousted of the legacy under this decision, she brings an action against Kramer and his sureties for the value of said legacy, alleging that she has lost the same by reason of the fault, negligence, imprudence and want of skill and inattention to his business of the said notary.

There is no dispute that Kramer was regularly appointed a notary public by the Governor; that Thuem and Hassinger were his sureties on his official bond.

The condition of this bond is that the notary "shall well and faithfully discharge and perform all the duties incumbent upon him in and for the parish of Orleans, and for the faithful performance of all duties required by law toward all persons who may employ him in his profession as notary in accordance with the act relative to notaries."

The petition was met by exceptions of prescription of one year and no cause of action.

The plea of prescription is disposed of by our decision in a like action upon the bond of a notary, where we said: "The prescription of one year is based on the hypothesis that the action is one for damages for a quasi offence. We are not concerned here with the question as to whether defendant's breach of duty was, or not, technically a quasi offence. The action is on a bond, and, therefore, ex contractu, to which the prescription invoked is not applicable." Brigham vs. Bussey, 26 An. 676; Fox vs. Thibaut, 33 An. 33.

The exception of no cause of action is based upon the idea that the obligations under the bond are governed exclusively by the terms of Section 2503 of the Revised Statutes, which provide that the notary's bond shall be "conditioned for the faithful performance of all duties required by law toward all persons who may employ him in his profession of notary," and, therefore, that as plaintiff did not employ this notary and the petition does not so allege, it sets forth no breach of the bond and no cause of action thereon. Without deciding that this would be a proper construction of this statute, it is sufficient to say that, with reference to notaries in the parish of Orleans, the broader requirement of Act No. 609 of 1857 is reproduced and held in force by Section 2521 of the Revised Statutes, which exacts a bond conditioned "for the faithful performance of his duties." The bond in this case, as shown by our above quotation of its terms, was evidently framed to comply with requirements of both these sections. The effect of the condition prescribed by the Act of 1857, and Section 2521, Revised Statutes, has already been construed by this court. The suggestion that it applied only in favor of persons employing the notary was repudiated, and the court said: "The Act of 1857 fixes, as the broad and legitimate condition of the notary's bond, that he shall faithfully perform his duties in that capacity." Rochereau vs. Jones, 29 An. 84.

There can be no doubt that this bond, given by a notary of New Orleans, is governed by Section 2521, Revised Statutes, which is a special statute applying exclusively to notaries of this parish and must prevail over the general provision of Section 2503, which applies to the notaries of the State, generally. We observe that Section 2521 has been again reproduced in the latest act touching notaries in New Orleans, Act No. 42 of 1890.

If the contentions of defendants were well founded there would be no liability under the notary's bond for any fault or misconduct however gross in that most important of all notarial functions, the confection of testaments. No one could be injured by the nullity of the testament except the legatees, and as they are not the persons who employed the notary, they would have no recourse.

The further legal defence is interposed that the bond does not guarantee the competency of the notary, but only his fidelity and honesty. Such is not the tenor of the bond, which is conditioned that the notary "shall well and faithfully discharge and perform all the duties incumbent upon him," etc.

Our jurisprudence recognizes no such restriction, but has held the notary and his sureties responsible for faults of omission or commission unattended with any suggestion of fraud or dishonest intent. Brigham vs. Bussey, 26 An. 676. Fox vs. Thibaut, 33 An. 33.

In a later case we distinctly said: "The stipulations which the bond contains constitute the contract entered into, and must be strictly construed. The object contemplated was to make certain that the notary would discharge well and faithfully all the duties incumbent upon him, and in case of his failure to do so, and loss was sustained thereby, to hold the surety liable. * * * Before the notary and his surety can be held, it is necessary to inquire whether the act done or not done, committed or omitted, was or was not authorized by law, was or was not incumbent upon him, was or was not required of him, whether he was directed to do it, whether he has failed to discharge his duty, and whether injury has been sustained." Schmitt vs. Drouett, 42 An. 1064.

It is true that the State takes certain other precautions to secure the competency of...

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15 cases
  • DON GEORGE v. Paramount Pictures, Civ. No. 3050.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • September 18, 1951
    ......See, also, Gordon v. Stanley, 108 La. 182, 32 So. 531; Weintz v. Kramer, 44 La.Ann. 35, 10 So. 416; Fox v. Thibault, 33 La. Ann. 32; Brigham v. Bussey, 26 La.Ann. 676, 677; Brown v. Gunning's Curatrix, 19 La. ......
  • Don George, Inc. v. Paramount Pictures, Civ. A. No. 3050.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • October 11, 1956
    ......Gordon v. Stanley, 108 La. 182, 32 So. 531; Weintz v. Kramer, 44 La.Ann. 35, 10 So. 416; Fox v. Thibault, 33 La.Ann. 32; Brigham v. Bussey, 26 La.Ann. 677; Brown v. Gunning's Curatrix, 19 La. 462; ......
  • Succession of Killingsworth, s. 53128
    • United States
    • Supreme Court of Louisiana
    • September 24, 1973
    ...... See the analogous contract case of Andrepont v. Acadia Drilling Co., 255 La. 347, 341 So.2d 347 (1969). On other gronds it has been held in Weintz v. Kramer, 44 La.Ann. 35, 10 So. 416 (1892), that a notary is liable to intended legatees deprived of their legacy by the notary's clear error. We ......
  • Newsom v. Boothe, 19,537-CA
    • United States
    • Court of Appeal of Louisiana (US)
    • May 4, 1988
    ......        On September 30, 1985, Mr. Boothe terminated his representation of Mrs. Newsom. She then consulted another attorney, Mr. Kramer, who advised her the will was invalid but nevertheless offered it for probate. On November 8, 1985, Mr. Newsom's forced heirs filed an opposition ...art. 1890. Woodfork v. Sanders, 248 So.2d 419 (La.App. 4th Cir.1971), writ denied 259 La. 759, 252 So.2d 455 (1971); Weintz v. Kramer, 44 La.Ann. 35, 10 So. 416 (1892). The issue in these cases is not prescription, but rather the disappointed legatee's cause of action. ......
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