Gastauer v. Gastauer

• Decision Date: 27 May 1918
• Docket Number: 21188
• Citation: 143 La. 749,79 So. 326
• Court: Louisiana Supreme Court
• Parties: GASTAUER v. GASTAUER

79 So. 326

143 La. 749

GASTAUER v. GASTAUER

No. 21188

Supreme Court of Louisiana

May 27, 1918

Rehearing Denied June 29, 1918

George J. Untereiner, of New Orleans, for appellant Mrs. Sophie Gastauer.

Benjamin T. Waldo, of New Orleans, for appellant George Gastauer.

Woodville & Woodville, of New Orleans, for appellee Otto Walther.

OPINION

PROVOSTY, J.

After a judgment of separation from bed and board had been rendered in favor of plaintiff against her husband (132 La. 942, 61 So. 879), and plaintiff had accepted the community of acquets and gains that had existed theretofore between them, a partition of the community property was ordered. The property was converted into cash, and the notary to whom had been referred the making of the partition filed his project of partition. In it he recognized certain claims as being debts of the community, and others he noted as being contested.

Among the latter is a claim of Otto Walther for $ 1,000 represented by a note secured by a mortgage on the community property. Gastauer contends that this note was negotiated by his then lawyers without his consent. His testimony is not consistent with itself, nor with the attending circumstances and is contradicted by that of the lawyers. We believe the latter; but, if it were otherwise, Walther's claim would still have to be maintained, as he acquired the note in good faith, for value ($ 950), before maturity. Suspicion is sought to be thrown upon whether the note was negotiated at all; but the evidence satisfied the learned trial judge, and satisfies us that it was. The learned counsel for Mrs. Gastauer questions the good faith of Walther, but for so doing bases himself upon the erroneous assumption that because Walther at the time he acquired the note was the client of the said lawyers he must be charged with knowledge of this supposed want of authority of these lawyers to negotiate the note. Such an imputation of knowledge could have been made only if the lawyers had been Walther's agents for acquiring the note; whereas they were the agents of Gastauer for selling it, and Walther dealt with them as such.

The said note and mortgage were executed after Gastauer had brought a suit for divorce against his wife, and had discontinued it. Mrs. Gastauer contends that the discontinuance was for the purpose of relieving Gastauer from the disability a husband is under to dispose of the immovables of the community of acquets and gains pending a suit for divorce (article 150, C. C.), and this solely that he might defraud her by the execution of this mortgage. The answer is that, no matter what may have been the motive of the discontinuance the suit was none the less discontinued, and that, a divorce suit being no longer pending, the disability incident to the pendency of such a suit no longer existed.

Another disputed item is $ 611, which after the institution of the suit of separation from bed and board Mrs. Gastauer paid to the Union Homestead Association for account of the community. The money with which this payment was made was earned by her before the institution of the separation...