Eduardo Fernandez Y Compania v. Longino & Collins

• Decision Date: 05 January 1942
• Docket Number: 32166.
• Citation: 6 So.2d 137,199 La. 343
• Court: Louisiana Supreme Court
• Parties: EDUARDO FERNANDEZ Y COMPANIA v. LONGINO & COLLINS et al.

6 So.2d 137

199 La. 343

EDUARDO FERNANDEZ Y COMPANIA v. LONGINO & COLLINS et al.

No. 32166.

Supreme Court of Louisiana

January 5, 1942

Rehearing Denied Feb. 2, 1942.

Quintero & Ritter, Spencer, Phelps, Dunbar &amp Marks, Sumter D. Marks, Jr., and Ashton Phelps, all of New Orleans, for plaintiff and appellant.

Lemle Moreno & Lemle, of New Orleans, for defendants and appellees.

McCALEB Justice.

Eduardo Fernandez Y Compania, a commercial copartnership, domiciled in the City of Santa Barbara, Republic of Honduras, brought this suit against Longino & Collins, a commercial copartnership domiciled in the City of New Orleans, to recover the sum of $23,242 representing the value of certain liquid amber or amber balm which had been shipped to the defendant by one Gordon R. Cowie for plaintiff's account during the months of August, September and November, 1918. Plaintiff averred in substance that there were four shipments of amber delivered to the defendant; that the first three shipments consisted of 9,710 pounds of amber valued at $2 per pound which belonged to it in full ownership; that the fourth shipment consisting of 10,632 pounds of amber valued also at $2 per pound was owned jointly by it and Gordon R. Cowie, in equal proportions, and that the defendant has neglected and refused to account to it therefor. It was further alleged that, in spite of the fact that defendant knew that plaintiff was the owner of the amber, and notwithstanding that it had been advised by plaintiff, while the amber was still in its possession, not to dispose of said amber or the proceeds of the sale of the same to Gordon R. Cowie or to any other person, the defendant nevertheless sold the amber in January, 1919, and has refused to account for the proceeds of the sale.

In due course, the defendant appeared and resisted any liability whatever in the premises. It averred that, during August, September and November of 1918, it received four certain shipments of amber which had been consigned to it as agent for Gordon R. Cowie; that all of this amber had been disposed of by it upon instructions from Cowie and that it had fully accounted to Cowie for the proceeds of the sales. It further averred that it was notified by Cowie at the time it received the shipments of amber that these shipments had been made for the account of a copartnership composed of Cowie and the plaintiff; that, on October 24, 1918, which was subsequent to the date of the first three shipments, it was advised of the execution of articles of partnership between the plaintiff and the said Cowie; that the suit filed by the plaintiff was in truth an attempt on its part to settle the differences between plaintiff and the said Cowie arising out of their copartnership and that plaintiff had full knowledge of the fact that settlement had been made by it for all shipments of amber which had been consigned to it by Cowie.

After a protracted trial on the issues presented by the pleadings, judgment was rendered by the District Court dismissing the plaintiff's suit. Plaintiff has appealed from the adverse decision.

Before attempting a discussion of the facts of this case, it is apt to remark that, although the suit was filed in the District Court in the year 1920, a period of over eleven years elapsed before the taking of evidence was finally completed and that the matter was not submitted to the District Judge for his decision until the early part of 1932. The plaintiff's evidence, for the most part, consists of various depositions (some of which were taken in Honduras and others in New York) relating to intricate and involved accounts growing out of the business relationship and dealings between the plaintiff and Gordon R. Cowie in pursuance of various agreements made between them with respect to the production of liquid amber and its shipment to the United States for sale.

Plaintiff's appeal reached this court in December, 1932, and remained on the delay docket for over eight years before it was presented to us for our decision.

While the extraordinary delays which have occurred in this matter cannot be attributed to counsel for either side, the lack of dispatch in the taking of testimony has redounded to the disadvantage of the witnesses, whose recollections of the involved agreements between plaintiff and Cowie have been rendered vague and uncertain by the lapse of time. For this reason, it is somewhat difficult to state with precision the various and complicated transactions which have given rise to the litigation.

Our analysis of the evidence discloses the pertinent facts of the matter to be as follows:

The plaintiff is a copartnership engaged in the mercantile export and import business in Santa Barbara, Honduras. During the years 1917, 1918 and 1919, this concern, in conjunction with its other business, purchased various quantities of liquid amber and shipped it to the United States for sale.

Gordon R. Cowie, a resident of Columbia, Tenn., was formerly the manager of the American Chicle Company in Honduras. During the year 1917, he became interested in the liquid amber business. Operating as a competitor of the plaintiff, he purchased various quantities of amber in Honduras and shipped it to the United States for sale. Over a short period of time, the plaintiff and Cowie developed their respective businesses as dealers in amber to such an extent that they became the two largest purchasers of that product in Honduras and, as a result of their competition, the price for which amber could be obtained in that country was steadily advanced. To prevent the continual increase in the price of amber in Honduras, the plaintiff and Cowie, on April 20, 1918, entered into a price-fixing contract whereby they agreed in substance to make all purchases of amber jointly and that they would not pay more than a certain fixed sum for all amber acquired without specific agreement between themselves to the contrary.

At the time this agreement was made, both parties were shipping large quantities of amber to the United States and Cowie had certain connections in this country by which he was able to dispose of the amber shipped by him for a considerable profit. During this period, the plaintiff, not being in the best of financial circumstances, entered into certain verbal agreements with Cowie, who was at that time a man of means, to assist it in financing its operations in the amber business and to dispose of a considerable portion of its amber in the United States.

In accordance with this arrangement, the plaintiff thereafter became indebted to Cowie for the value of 30 cargas of amber and he also advanced to it the sum of $3,000 in gold. This indebtedness to Cowie was duly acknowledged by plaintiff in a written contract dated August 31, 1918.

Throughout the period in which he shipped amber to the United States, Cowie had appointed the defendant, Longino & Collins, as his agent in this country for its sale or disposal. On August 27, 1918, he wrote to the defendant stating that he had shipped for the account of plaintiff nine drums of amber weighing 4293 pounds; that other shipments would be made for plaintiff's account and that, after those shipments had been made, all other shipments would be for the joint account of plaintiff and himself. In accordance with this advice given by Cowie, the defendant received a shipment on August 30, 1918, of nine tanks of amber containing 4,066 pounds for the account of the plaintiff; on September 13, 1918, eleven tanks containing 4,018 pounds for its account; on September 27, 1918, two tanks containing 582 pounds for its account and on November 20, 1918, nineteen tanks containing 9,047 pounds for the joint account of Cowie and plaintiff.

It is shown that, at the time that these shipments were made, there was some sort of verbal arrangement existing between Cowie and plaintiff with respect to the distribution and sale of all the amber contained in these shipments. Plaintiff, as we have said, was at that time indebted to Cowie for thirty cargas of amber as well as the sum of $3,000, and it is probable (although not clearly indicated by the record) that Cowie was secured by the amber sent to the defendant for plaintiff's account for the payment of the indebtedness to him.

During the month of October, 1918, Mr. Fernandez (the head of the plaintiff firm) came to New Orleans, where he met Cowie and Mr. Longino of the defendant concern to discuss the sale of amber in the United States. From New Orleans they journeyed to New York where further discussions were had and where the previous verbal arrangements and understanding between Fernandez and Cowie were reduced to writing.

It further appears that Fernandez had sold a large shipment of amber to Leuders & Co. of New York; that he needed the money representing the purchase price of the sale and that Cowie, in order to permit him to obtain the money immediately, advanced to him the necessary sum and took an assignment of the plaintiff's interest in the sale to Leuders & Co. as consideration therefor. A large part of the amber which had been shipped by Cowie to Longino & Collins for plaintiff's account was included in the sale by Fernandez to Leuders & Co. and, when Cowie received the assignment from the plaintiff of its interest in this amber, he ordered the defendant to deliver the amber to Leuders & Co.

The foregoing transaction was completed in New York City and, as soon as it was done, the parties, Fernandez and Cowie, entered into a written contract whereby they agreed to pool their interests in the acquisition and diposition of liquid amber and to divide the proceeds of this business on a fifty-fifty basis. It was also provided that Fernandez & Co. would handle the production end of the business...