Milliken v. Barrow

• Decision Date: 28 January 1895
• Docket Number: 12,325,12,220.
• Parties: MILLIKEN v. BARROW. BARROW v. MILLIKEN.
• Court: U.S. District Court — Eastern District of Louisiana

65 F. 888

MILLIKEN v. BARROW.

BARROW v. MILLIKEN.

Nos. 12,325, 12,220.

United States Circuit Court, E.D. Louisiana.

January 28, 1895

The material portions of the agreed statement of facts are substantially as follows:

It is hereby agreed between the plaintiff and the defendant through their undersigned counsel, that a jury in this case shall be waived and the case shall be tried before the court on the following statement of facts, and documents annexed and made part of the statement of facts.

C.J Barrow was a sugar planter residing and doing business in the parish of West Baton Rouge. Richard Milliken is a commission merchant residing and doing business in the city of New Orleans. Milliken had made advances to Barrow to make the crop of the year 1890, and at the close of the crop year, on the 18th day of February, 1891, Barrow was indebted to Milliken in a balance of $6,081.81. On the 2d of March, 1891 the parties appeared before Edgar Grima, a notary public, and executed two notes, secured by a mortgage on Barrow's plantation; the first note, for $6,081.81, being for the balance then due to Milliken, and the second, for $11,918.19 being intended to cover advances that might be made by Milliken to Barrow to make crops upon his plantation in the year 1891. At the close of the year 1891, to wit, on March 10, 1892, there was a balance due Milliken on the whole indebtedness, inclusive of the note of $6,081.81, and interest thereon, of $20,305.41, and against this balance there remained outstanding and uncollected claims against the United States, for bounty on sugar produced by Barrow during the year 1891, of $5,494.58. On March 14,1892, Barrow and Milliken appeared before Edgar Grima, notary public, and Barrow executed his note for $15,000, and secured the same by a mortgage upon the property therein described, and agreed to all the stipulations therein contained, including the following: 'Now, to secure the faithful performance of each and all of the foregoing obligations, the reimbursement and payment of all costs, charges, expenses, and commissions aforesaid, said mortgagor does by these presents further specially mortgage and hypothecate the hereinbefore described plantation, and all appurtenances thereof, unto and in favor of said mortgagee, and all holders of said note, and does hereby transfer, assign, and pledge unto said mortgagee, and all holders of said note, any and all bounties which shall or may be allowed to said mortgagor by the government of the United States on the sugar made on the plantation during the present year, 189--; hereby agreeing to deliver, properly assigned and indorsed, to said mortgagee all and every certificate and other evidence of claim against the United States for such bounty, and any and all drafts or checks given for said bounty.'

The object of the execution of this note and mortgage was to cover advances to be made by Milliken for the making of the sugar crop on his plantation, mortgaged in the act, for the year 1892. The amount of such advances, made in the interval between March 10, 1892, and January 21, 1893, exclusive of interest, was the sum of $18,142.55; and the amount credited to Barrow during such period, exclusive of interest, was the sum of $21,485.62. Of this sum of $21,485.62, $5,518.53 thereof was composed of sugar-bounty checks for sugar bounty granted by the United States government to Barrow for making sugar on the said plantation during the year 1891, which checks were collected at various dates in the months of March, April, and May, 1892, leaving the amount of the proceeds of the crop for the year 1892 to be the sum of $15,967.09, without interest. The accounts between the parties were kept on the books of Richard Milliken. The court is to consider these accounts, and the facts therein stated, and the inferences to be drawn therefrom, as fully as if the same were set forth in this statement of facts. It appears by these accounts that on the 21st of January, 1893, there appeared to be a balance due by Barrow to Milliken, on all of the transactions aforesaid, of $18,492.78, and as security for this balance Milliken held in his possession the three mortgage notes described in the foregoing acts of mortgage. On the 31st of January, 1893, Richard Milliken filed executory proceedings in the United States circuit court for the Eastern district of Louisiana against Cordelius J. Barrow. On February 6, 1893, Richard Milliken filed a motion in said cause in the following terms, to wit: 'On motion of plaintiff herein, through his counsel, Semmes & Legendre, and on suggesting to the court that the sum of twenty-nine thousand eight hundred and ten 86/100 dollars was erroneously claimed of the defendant under the petition filed in this cause; that the mortgage claims due by defendant to plaintiff on the day this suit was brought amounted to eighteen thousand four hundred and ninety-two 78/100 dollars, with eight per cent. interest from January 8, 1893; and on further suggesting to the court that plaintiff wishes to enter a discontinuance of his suit, and a remittitur of his demand, in so far as the same exceeds the sum of eighteen thousand four hundred and ninety-two 78/100 dollars, costs and attorney's fees exclusive, which are not waived,-- it is ordered by the court that this suit be discontinued to the extent of eleven thousand three hundred and eighteen 15/100 dollars, and that it be maintained in full force and effect for eighteen thousand four hundred and ninety-two 78/100 dollars, with interest, costs, and attorney's fees. ' The proceedings in this cause were subsequently stayed by an injunction issued at the suit of the plaintiff in this present cause, the syndic of Cordelius J. Barrow.

On the 26th of January, 1893, C. J. Barrow presented to the judge of the Fourteenth judicial district court for the parish of West Baton Rouge, the place of his domicile, a petition, under the insolvent laws of the state of Louisiana, for the surrender of his property, and the court on that day entered an order accepting the surrender. This petition was filed in the clerk's office on the following day, the 27th of January. On the 31st of January, 1893, Alexander D. Barrow, plaintiff in this cause, was appointed provisional syndic of the estate of C. J. Barrow, and he was subsequently, at a meeting of the creditors, appointed syndic. During the years 1891 and 1892 the said C. J. Barrow duly qualified himself as a sugar producer and manufacturer under the provisions of an act of congress of date October 1, 1890, and thereby, as such sugar producer, became entitled, upon compliance with the rules and regulations of the treasury department of the United States, to receive sugar bounty, for which sugar bounty, in due time, checks were issued to the order of C. J. Barrow, and those checks were forwarded to C. J. Barrow at New Orleans, to the care of Richard Milliken. For the crops of the year 1892 the following checks were forwarded: On March 14, 1893, a check for $1,624.61; on March 13, 1893, a check for $1,838.60; on May 19, 1893, a check for $23.90; on April 11, 1893, a check for $2,689.38. These bounty checks are now in the possession of the defendant in this cause, Richard Milliken, and amount in the aggregate to the sum of $6,176.51. The insolvent, C. J. Barrow, has never indorsed the same. In his schedule of assets filed with his petition in January, 1893, C. J. Barrow did not set forth these bounty checks. Proceedings were taken by the syndic, Alexander D. Barrow, in the insolvency proceedings against C. J. Barrow, to compel the surrender of these checks. Said proceedings were terminated by a judgment in favor of the syndic, perpetually enjoining and restraining the said Barrow from collecting any of the said treasury checks, and from indorsing the drafts in blank to any other person than the syndic of the insolvent estate, and directing the said Barrow to surrender the said treasury drafts to his creditors as part of his assets, properly indorsed in favor of the syndic of his estate, to be distributed among his creditors according to law. It is admitted that Richard Milliken was no party to this judgment in the state court. It is further admitted that no imputation of payments has ever been made by the said Milliken under the two notarial contracts aforesaid, further than appears as a matter of law from the manner in which the account current, above annexed and referred to, was kept upon his books, and as appears as a matter of law on the face of the pleadings and papers in the executory proceedings against C. J. Barrow.

Semmes & Legendre, for Richard Milliken.

Farrar, Jonas & Kruttschnitt, for Alexander D. Barrow, syndic.

PARLANGE District Judge.

By agreement of parties, the two above-entitled causes have been consolidated, and are to be tried as an equity cause, under the style of 'Richard Milliken v. Alexander D. Barrow, Syndic, No. 12,325. ' The jury has been waived in writing in the case at law, and the parties have stipulated that the whole matter shall be tried by the judge on the agreed statement of facts. By a notarial act of mortgage, executed on March 14, 1892, C. J. Barrow declared himself to be indebted to Richard Milliken in the sum of $15,000, amount of loan which Barrow obtained from Milliken to enable him to work and cultivate, during the year 1892, the sugar plantation described in the act. The clause in said act on which the complainant, Milliken, relies to obtain the relief which he prays for, is as follows:

'Now, to secure the faithful performance of each and all of the foregoing obligations, the reimbursement and payment of all costs, charges, expenses, and commissions aforesaid, said mortgagor does by these presents further specially mortgage

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