Hollingsworth v. Brothers
| Decision Date | 01 April 1894 |
| Docket Number | 11,456 |
| Citation | 15 So. 77,46 La.Ann. 515 |
| Court | Louisiana Supreme Court |
| Parties | R. B. HOLLINGSWORTH v. ATKINS BROTHERS |
APPEAL from the Ninth District Court, Parish of Red River. Hall J.
J. C Egan, for Plaintiff and Appellant.
Pugh & Wilkinson, Attorneys, for Defendant and Appellee.
Plaintiff claims rent as lessor of a plantation on Red river known as the "Jordan Ferry" plantation.
The defendants held as transferees of Smith Bros. for the years 1891 to 1894.
For the year 1892, the defendants, after they had became transferees of the lease, executed two notes, one for the sum of two thousand and thirty-two dollars and sixty-six cents due November 1, 1892, and the other for five hundred and eighty-eight dollars due on the 30th of that month.
Prior to their maturity, the plaintiff instituted suit on these two notes and caused a writ of provisional seizure to issue.
The defendants moved to dissolve this writ of provisional seizure on two grounds.
1. That the writ issued without cause.
2. That the affidavit to the petition for the writ was made by the attorney when the plaintiff was present.
The first ground was overruled; the second was pronounced fatal to the writ; the provisional seizure was dissolved for the reason that it is only in the absence of the principal that the attorney can make the affidavit.
Atkins Bros., the defendants, obtained a release of a portion of the property seized, by executing a forthcoming bond on the 11th day of October, 1892.
A second forthcoming bond was executed on the 17th day of October and all the property under seizure was released.
Plaintiff amended his original petition and procured another writ of provisional seizure and caused the seizure of the property on which he claimed a privilege.
On the 10th day of January, 1893, the defendants executed a forthcoming bond and obtained its release from the second provisional seizure made.
Subsequently, one of the partners interposed an exception on the ground that he had not been cited.
The exception was overruled.
The defendants answered.
The case was tried by jury.
The verdict was for plaintiff against the defendants in solido for the sum of one thousand four hundred and seventy dollars.
After an ineffectual attempt to obtain a new trial, the plaintiff appeals.
BILL OF EXCEPTIONS.
The defendants on trial attempted to prove their right to any over-payment made of rent for the year 1890 by those from whom they leased.
To that end they offered to prove that in the transfer of the lease to them by Smith Bros. the latter intended to convey their right to claim any over-payment of rent on account of any deficiency of acreage in the year before stated.
The paper offered to prove intention was signed by a member of the firm of Smith Bros. some time after the suit at bar had been instituted.
This member of the firm had testified as a witness in the case, and said nothing about this transfer.
The court a qua held that, if he was to give an interpretation to the transfer different from what it showed on its face, he should give it under oath, and not by written statement.
No rule sanctions the method adopted to prove the intention of the contracting parties.
If the act needed interpretation in order to include all the rights transferred, the writing offered, being unsworn to and ex parte, was not admissible, for it could add nothing to the legal rights of the parties.
The ruling was correct and the document properly excluded.
The amended petition for a provisional seizure, and the second seizure made, leaves but little to discuss in matter of the dissolution of the original writ, save the damages claimed to be due because of its illegality.
ALLEGED WANT OF CITATION.
One of the defendants pleads and argues that he was not cited; that the partnership of which he was a member was not a commercial partnership, and that the service of the citation addressed to the partnership does not cure the want of citation on the partner not cited.
The defendants having, in the name of the partnership, applied to the court to bond the property, and having executed a forthcoming bond in favor of the sheriff and taken possession of the property, have cured any defect of citation, or the absolute want of citation.
Be the partnership commercial or ordinary, the fact remains that the bond was executed in the name of the partnership, to whom the property seized was delivered.
A partnership can not repudiate a bond whereby it has obtained the possession of property.
The records do not disclose that it was the act of one of the partners, as argued, but that it was the act of the partnership.
There was an appearance made in the case, by the act of bonding. It was the condition precedent to obtaining release of the property on a forthcoming bond.
Such was the ruling in a number of cases of this court. The first case being Rathbone & Co. vs. Ship London, 6 An. 439; Bush & Thompson vs. Darring, 24 An. 272; Williams vs. Gilkerson-Sloss Commission Company, 45 An. 1013.
AN ORDINARY PARTNERSHIP.
The lease of real estate by a commercial partnership will not have the effect of binding the partners in solido.
The lease and the purchase of real estate are not different, in so far as relates to the extent of the ownership of the partners of an ordinary partnership. The real property bought by a commercial partnership is the joint property of the individual partners.
The same rule will apply to a lease.
The articles of the code limit commercial partnership to the purchase of any personal property and its sale; to carrying personal property for hire in ships or other vessels. C. C. 228.
In interpreting the provisions of the law relating to commercial partnerships this court has decided that the purchase of real estate is foreign to the purpose of a commercial partnership.
The reasoning which leads to this conclusion and establishes its correctness applies with equal force to the contract of lease.
The immovable property leased by a commercial partnership is held by the partnership for the purposes of the firm under conditions similar to those attending the ownership of immovable property, and ordinarily the obligations of the partners are joint.
It occurs that in the case at bar the responsibility of the lessors is not materially lessened by this joint liability.
All the property provisionally seized was subject to the lessor's privilege.
The right is not limited by the joint responsibility, for the lessor's privilege covers the whole property.
Even the property of third person is subject to that privilege when it is found on the property leased.
A partner whose obligation is only joint and who has furnished a release bond, to pay the judgment should he be condemned, must be held bound to an amount equal to his obligation on the bond.
Thus bound it must be of little moment to him whether the obligation is joint or in solido.
Moreover the judgment appealed from condemns the defendants in solido to pay the amount pronounced due.
The jury returned that the defendants were liable in solido.
Neither of the defendants has answered the appeal and prayed for the amendment of the judgment.
The judgment as to them must remain. C. P. 889.
To the amount of the judgment the question of solidarity is finally determined.
In reference to the balance due it is secured to the limit of the obligation on the bond of release.
ACRES OF LAND LEASED.
The defendants claim in their reconventional demand a deduction for twenty-eight and three-fourths acres, alleged shortage in the number of acres for the years 1890, 1891 and 1892, at four dollars and fifty cents an acre, and a deduction for a shortage of thirty-one acres for the year 1890 at five dollars an acre.
The jury, in making up their verdict, erroneously included over-payments by Smith Brothers, transferrers of the lease to the defendants, though the court had excluded testimony offered to prove that claim.
A lease transferred will not include a right to amounts overpaid by the transferrors at the date of the transfer, unless it is expressly declared that the right is transferred with the lease.
It is a right distinct from those under the lease and not carried with the transfer of the lease without some statement to that effect.
The defendants not having been subrogated to the right, it remained with those who paid the amount without having received consideration therefor.
The right of a purchaser of a lease (without qualification),...
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