Duncan research files of
"Reports from the Court of Claims submitted to the House of Representatives, during the thirty-fifth Congress 1857-'58" 1st Session, Vol.3, House of Representatives Report C.C. No. 174, 82 pages (Call Number KF125.C5 C54; California State Law Library, Sacramento, 12/2003)
LOGAN HUNTON v. THE UNITED STATES; United States Court of Claims; 6  U.S. Cong. Rep. C.C. 174; May 4, 1858
(opinion) In the year 1849 the petitioner was appointed and commissioned attorney of the United States for the eastern district of Louisiana. He claims that the United States are indebted to him for official services as follows, to wit: (1) in the sum of seven hundred and sixty dollars: (2) in the sum of two hundred and seventy-five dollars; and (3) in the sum of five thousand dollars; amounting, in the aggregate, to the sum of six thousand and thirty-five dollars. (1) and (2.) The first two sums (of $760 and $275) have been audited and allowed by the accounting officers of the treasury, and are not now disputed. (3.) The third sum ($5,000) is claimed for services rendered in the United States circuit court for the eastern district of Louisiana, in the year 1851, in certain criminal cases, to wit: The United States vs. Narcisso Lopez; Same vs. John Henderson and others; Same vs. Theodore O'Hara and others; Same vs. L. J. Sigur; and Same v. Lewis, master of steamship Creole; each case being on indictment under the sixth section of the act of April 20, A. D. 1818. The rendition of the alleged services in these cases is admitted, but the petitioner's title to compensation is denied. ...
We will first consider the petitioner's claim for five thousand dollars. A copy of the petitioners account for this item of his claim is on file in this case. -- (See paper "I.") The judge of the district court certified as follows: "I, Theodore H. McCaleb, judge of the United States district court, eastern district of Louisiana, have examined the charges made in the above named criminal cases, and, finding the same reasonable and proper, have allowed the same." The clerk of the circuit court of the United States for the eastern district of Louisiana certified, that the petitioner "has rendered the services in the above criminal cases specified, and that his charges therefor are legal and proper." John R. Grymes, Garnell Duncan, William Randolph, C. Roselius, J. P. Benjamin, and Miles Taylor, members of the bar of New Orleans, and practitioners in the United States circuit court there, certified "that the charges made by" the petitioner "in the above account for his services are by" them "deemed reasonable and proper." J. N. Lea, judge of the second district court of New Orleans, certified "that charges for services similar to those stated in the cases mentioned in the foregoing account as having been rendered by Logan Hunton, attorney of the United States, would by" him "be deemed reasonable and proper, had such services been rendered in any State court of the State of Louisiana by an attorney authorized to receive pay and compensation for his services in proportion to the labor and ability required, and in proportion to the importance of the case."
"Louisiana term reports, or Cases argued and determined in the Supreme Court of the state of Louisiana" by Francois-Xavier Martin, one of the Judges of said court, Vol.VIII, being Vol.X of this reporter; spine title "Louisiana : Martin's Louisiana Reports, new series" Vol.2, pgs. 274 to 287 (California State Law Library 12/2003) (MAD: the will of Richard Butler is in Adams Co. MS)
BUTLER vs. KENNER & al; Supreme Court of the State of Louisiana, Eastern District; 2 Mart. (n.s.) 274; March, 1824, Decided.
APPEAL from the court of the first district. Judgment of the district court annulled, avoided, and reversed, and plaintiff recovered from the defendants the sum of twenty-seven thousand six hundred and eleven dollars and fifty four cents, with interest, with costs in both courts.
(opinion) MARTIN, J. The petition states, that R. Butler died, possessed of considerable real and personal property, in the states of Louisiana and Mississippi, having appointed the plaintiff and A. L. Duncan, his executors -- and his will was proven and letters testamentary accordingly issued, from the court of probates in New Orleans -- but the period within which the executors were authorised to act, has long since expired -- that the plaintiff proved the will and obtained letters testamentary, in the state of Mississippi, having previously given bond according to law; but A. L. Duncan did not prove the will neither did he act as an executor under it in the state of Mississippi -- that, he paid to the devisees of his testator and the heirs of Margaret Butler, the testator's wife, to whom one half of the personal property of his testator in said state was bequeathed, their respective shares of said estate, with the exception of certain bank shares and a quantity of cotton, and has lately transferred to the heirs of Mrs. Farrar 296 shares in the bank of Mississippi, and disposed of the whole estate according to law, except 91 bales of cotton, and a quantity of it in the seed, which has produced 128 bales, and he afterwards obtained 296 bales, from the crop off the deceased's plantation, in said state: the whole of which cotton, viz. 424 bales, he consigned, for sale, to the defendants, commission merchants in New Orleans, who sold it for $27,611.54, as, by their account of sale, appears.
The petition contains another charge of the same sum, for money received for the plaintiff's use.
It is next averred, that by the defendants' neglect and refusal to pay, the plaintiff is disabled from settling his accounts, with the orphans' court in the state of Mississippi, to pay the remaining debts of the estate, and realising the commission to which he is entitled, whereby he suffers damage to the amount of 10,000 dollars.
There is next a charge for the like sum of $27.611 54 cts stated as due from the defendants to the plaintiff, on the net proceeds of a quantity of cotton, by him shipped to them, and by them, sold for his account.
The defendants, after a plea in abatement, which will be considered, deny that they are indebted to the plaintiff in any other manner than appears by an account, annexed to their answer, and which they aver, contains a true account of all their transactions relative to the estate of the plaintiff's testator, and that they were duly authorised to charge all the items therein charged. They denied that the plaintiff, as executor, made the payments and transfers alleged to have been made, either to the legatees of his testator, or the heirs of Mrs. Butler; but that these payments and transfers were made in pursuance of an agreement referred to, in their answer to the plaintiffs interrogatories -- that the proceeds of the 296 bales of coton were disposed of according to the order of the plaintiff's co-executor, and according to the above mentioned agreement.
They answered to the plaintiff's interrogatories that, 1st. in 1821 they opened an account with the plaintiff, as executor of R. Butler, and continued to correspond with him, up to the time they rendered him the account current, a copy of which is annexed to the petition, viz. Nov. 9, 1822, when they received a letter from him, complaining of a charge of $17,326 76 cts. dated April 9, 1822, menacing them with a suit, unless it was abandondoned -- that they replied that the estate was charged with that sum, by the direction of his co-executor, and of Harriet Hook, one of the legatees, who was entitled to that sum and more, by the agreement, referred to in the answer, and a consequent partition and settlement, made by the co-heirs; sanctioned and approved by the plaintiff, and carried into effect by commissioners, appointed by the heirs, the plaintiff being present and assenting to the partition and settlement, so that the defendants could not withhold from said Harriet, the sum there assigned her.
2. The defendants never received any directions from the plaintiff, as to the manner of keeping said account.
3. They received instructions from him, to keep a separate account of the disbursements of the Woodstock plantation, as appears by his letter, annexed to the answer; and they have no recollection of having ever received any other instructions, relative to the manner of keeping accounts -- they never considered the instructions, as placing the funds derived from the Woodstock estate out of the control of A. L. Duncan, his co-executor, and therefore felt perfectly safe, in paying over to Harriet Hook, the money in their hands, in the manner set forth in the first of these answers.
4. They kept an account, with the plaintiff, confined to these transactions with him, as executor of R. Butler; but no joint account with him and A. L. Duncan, his co-executor. They had no other instruction, as to the mode of keeping this account, than is contained in the third of these answers.
The suit was submitted to the court on the following agreed case.
R. Butler died Oct. 5, 1820, leaving the plaintiff and A. L. Duncan, his executors.
2. On the 9th of Dec. following, Duncan obtained letters testamentary in New Orleans, for the state of Louisiana, only; having never qualified as executor, in the state of Mississippi.
3. The plaintiff obtained letters testamentary, in Louisiana on the 13th of May, 1821.
4. He obtained like letters in the state of Mississippi, on the 25th of June, 1821, and executed the bond required, with sureties for 150,00 dollars, for the faithful discharge of his duties as executor.
5. He afterwards proceeded, on his own individual responsibility, as executor, in the state of Mississippi, to the inventory and appraisment and the discharge of his other duties.
6. He made the payments and distribution of the property, evidenced by the receipts annexed, and referred to in his petition. These receipts were duly executed by the persons by whom they purport to be signed, and it is admitted that those who appear to have signed them as agents, were so authorised.
7. The cotton, mentioned in the petition, and for which payment is claimed, grew on the plaintiff's testator's plantation, in the state of Mississippi; it came to the plaintiff's hands and he shipped and consigned it to the defendants.
8. They received and sold it for 27,611 dollars and 54 cents.
9. B. Farrar, B. T. Young and Eliza Young, are the heirs of Mrs. Butler, who died in October, 1820.
10. R. Butler devised to his wife one half of his personal estate, in the state of Mississippi.
11. The plaintiff gave the instructions, in his letter to the defendants, referred to in this answer to his interrogatory. He gave them no authority to pay to Harriet Hook, or any other legatee, and wrote the letter of Nov. 15, 1822, protesting against the defendants' conduct in regard to the credit given to Harriet Hook, and the consequent debit on his account current.
12. There are several debts of the testator, unpaid in the state of Mississippi, amounting to 2000 dollars; and several claims disallowed by the plaintiff; but for which suit may be brought, amounting to 3000 dollars.
13. The plaintiff has a considerable sum due him for commission, as executor of the estate in the state of Mississippi, and there are not sufficient funds in his hands to discharge the claims and said commission.
14. He was enjoined by the court of chancery of the state of Mississippi from dividing or distributing the estate in his hands, and this injunction, was in force at the date of the item complained of.
15. The agreement referred to in the answer, was communicated to the plaintiff before the date of Harriet Hook's receipt, and was acted upon by him, in the distribution of the estate,
16. The plaintiff in May last received letter from judge Dick, stating the outlines of a division of the estate.
17. And Duncan shewed him a copy of the agreement mentioned in that letter.
18. All the estate which came to the hands, or is under the control of the executors, except the balance, arising on the sale of cotton in the defendants' hands, was, previous to the institution of the present suit, distribituted and divided among the heirs and legatees, according to the principles of the agreement referred to. All these distributees are wealthy, and fully able to pay any debt or legacy, remaining unsatisfied.
There was judgment for the defendants, and the plaintiff appealed.
By the agreement relied on by the defendants, a partition of the estate of R. Butler, and M. Butler, is made, and to the payment of a balance due to the heirs of M. Butler, the proceeds of cotton, and other moneys of the estate, are affected.
Judge Dick, in his letter to the plaintiff, of May 11, 1822, informs him that a division and transfer of the several portions of the estate has been effected, except the balances in the defendants' hands, and the money due by M'Cutcheon, and that he has heard that Mrs. Hook has purchased for 50,000 dollars, M'Cutcheon's part of the Woodstock estate.
The plaintiff argues that the defendants contracted with, and are responsible to him alone; that the agreement of the parties, in regard to the division of the estate, cannot affect or modify his right on the defendants. That if this agreement is to have any effect, it does not support the alleged payment to Mrs. Hook, a devisee of R. Butler, as it appropriates the funds in their hands to the payment of the heirs of his widow. The plaintiff is responsible to the devisees and legatees of his testator, for the proceeds of the cotton, and has therefore a right to claim these proceeds from the defendants. Duncan was without authority to instruct; nothing authorises his interference. The defendants having undertaken to act as the plaintiff's agent, and received the cotton from him, cannot dispute his authority, nor withhold an account of the payment of the proceeds from him.
The defendants' first ground of defence, is a technical one, that the plaintiff sues an executor, in the state of Mississippi; and, as such, ought previously have obtained letters testamentary in this state. That he cannot join in the same petition a claim, in right of his testator, with one in his own right.
The plaintiff's cause of action was not one which ever existed in his testator, the suit cannot therefore be said to be brought in the right of the testator. The plaintiff contracted with the defendants, in respect to a quantity of cotton, which is alleged to be a part of the estate; the plaintiff might have avoided mentioning this circumstance; for his possession gave him such a qualified property in the cotton, as warranted his suing for any injury done to that possession, or the breach of any contract relating thereto.
It is next insisted that the plaintiff, by his own testimony, being an agent only for the devisees and legatees of his testator, must be bound by, and cannot alter any disposition of the property, which these, his principals, have made. An executor is not the agent of the devisees or legatees. To what use would his interposition be, if the devisees or legatees could at once command their respective devises or legacies, maugre the executor? It is from his hands they ought to be received, the things so devised and bequeathed are not to be arrested in the hands of his agents, and disposed of eo invito. The counsel has shown that the bailee cannot withhold the thing bailed, although it be not the property of the bailor. Surely, the rights of the alleged owner, a third party, cannot be examined, because they cannot be affected by a suit in which he neither appears, nor is cited.
The defendants contend farther, that, admitting they were once accountable to the plaintiff, they are no longer so, because:
1. The property has been divided and apportioned by the heirs, devisees' and legatess, to which Duncan expressly, and the plaintiff implicitly, assented.
2. The money paid to Harriet Hook was directed to be paid her by Duncan, who ad hoc was still an executor.
3. By a subsequent amicable agreement, the property was, with the express assent of the plaintiff, divided among the devisees and legatees, whereby the legal title vested in these devisees, and the defendants became thereby bound, on notice, to dispose of the funds in their hands accordingly.
It is admitted that Duncan's year of executorship had expired, and that his power resulting from the letters testamentary granted him by the court of probates of the parish of Orleans, (without which he could exercise no power under the will,) in Louisiana, had expired: and it is admitted that in the state of Mississippi, executors must, before acting, give surety and procure letters, which Duncan never did. The defendants cannot, in our opinion, derive any help from Duncan's act.
The plaintiff appears to have been satisfied with the mode of dividing the property, which the parties interested had agreed upon, and acted in pursuance thereto. But his lien or right of holding any part of the estate, of which he did not deprive himself, does not appear to have been thereby affected. The proceeds of the cotton were always in his hands, although in the possession and custody of his agents, an unappropriated residuum, after the heirs of M. Butler were paid without receiving any part of it.
It is further held that the cotton was not a part of the testator's estate, but was the individual property of his devisees, or the heirs of his wife.
This is re-producing an objection which has already been disposed of, when we concluded that the bailee could not oppose to the bailor, the right of another to the thing bailed.
The case agreed shows that the cotton, the value of which is claimed, came to the plaintiff's hands, as executor of R. Butler, in his administration of his testator's estate, that he shipped it to the defendants, with orders to sell it for him.
Whether the cotton made really a part of the estate or not, appears to us unnecessary to determine. If it was, the plaintiff, by taking it, and causing it to be sold, made it assets in his hands, and is accountable for the proceeds. The creditors or legatees of his testator, must establish their claims, upon any part of their proceeds, contradictorily with him, and cannot stop these proceeds in the hands of his agents: as the co-executor is not chargeable with the assets that came to his hands, and cannot give any directions as to the disposition of the proceeds.
If the cotton be no part of the estate, then neither Duncan as co-executor, nor the devisees and legatees of K. Butler, nor the heirs of M. Butler, can be considered as having agreed to any disposition of it, for the division of the plaintiff's testator's estate was all they had in view.
We do not discover any thing in the case authorising the conclusion that the plaintiff consented to the payment, which he now contests, and the court erred in allowing it.
It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed, and that the plaintiff recover from the defendants the sum of twenty-seven thousand six hundred and eleven dollars and fifty four cents, with interest from the inception of the suit till paid, with costs in both courts.
"Reports of cases argued and determined in the Supreme Court of Louisiana" by Merritt M. Robinson, October 1841 to March 1842 (Vol.1); spine title "Louisiana : Robinson's Reports" Vol.20; pgs.135 to 139 (California State Law Library 12/2003) (MAD: see Orleans Par. LA; see also the case of GLENN, Tutor v. ELAM, Tutrix.; Supreme Court of Louisiana, Monroe; 3 La. Ann. 611; October, 1848, Decided. in Catahoula Par. LA)
GEORGE CURRIE DUNCAN v. LUCIUS W. ELAM; Supreme Court of Louisiana, Western District, Alexandria; 1 Rob. 135; October, 1841, Decided.
Appeal from the District Court for the parish of Catahoula, WILSON, J.
(MAD: Counsel's arguments omitted here)
(opinion) MARTIN, J. The facts of this case are these: The defendant sold a tract of land and slaves to Cuny and Taylor, for a sum of money, which was to be paid in six yearly instalments of unequal amounts, for which he took their several notes, secured by mortgage. He negotiated one of them which was for nine thousand dollars, and afterwards took a retrocession from his vendees, who engaged to take it up, and in consideration of this, retained some of the slaves, which were excepted from the retrocession. This they failed to do, and the plaintiff became the holder of the note. The defendant being liable as endorser, pledged to the plaintiff a note of Jesse A. Bynum for eight thousand three hundred and thirty three dollars, secured by a mortgage; and the deed of pledge contains a clause by which the pledgor engages to pay the costs of any suit which the pledgee might be obliged or see fit to institute on said note, which was payable on the first day of January, 1841, but Bynum was at liberty to delay the payment until the first of March following. On the 23d of February, the plaintiff took out an order of seizure and sale to enforce the payment of the note out of the property originally mortgaged by Cuny and Taylor to the defendant. The latter took the present appeal from this order. His counsel has placed the case before us on the following assignment of errors. 1st. The affidavit is insufficient, the appellant being a third possessor, as it is not asserted that he had ten days notice after the expiration of thirty days demand on the original debtor. 2d. The order of seizure and sale incorrectly extends to two slaves, as to whom the petition is silent. 3d. The petition does not allege that the defendant's sale to Cuny and Taylor was duly recorded, it is not made part of the petition, and no certificate of record is mentioned. 4th. Bynum's note is no way accounted for. 5th. The authentic transfer of the mortgage by the plaintiff's endorsers was made after the endorsement of the note, when they had no interest therein, nor in the mortgage by which its payment was secured.
I. The appellant being personally liable for the debt, cannot be considered as a third possessor in the extent of the word. It is of the essence of third possession, that the possessor, not being liable for the debt, has the faculty of discharging himself by abandoning the mortgaged premises.
II. It is true that the two slaves alluded to, are not named in the petition, but they are in the act of mortgage which is annexed to the petition, and which concludes with a prayer that the slaves mortgaged may be seized and sold.
III. With regard to the defendant, who is the owner and possessor of the slaves, and personally bound for the debt; no recording is necessary.
IV. The plaintiff received Bynum's note, not in payment, but in pledge; it was not yet payable at the date of the order of seizure and sale; the deed of pledge left him at liberty to sue or not; the pledgor promissing to pay the costs which the plaintiff might incur in any suit he might be obliged or see fit to institute. He was not in mora when he prayed for this order of seizure and sale, nor is it alledged that he is so at this time. The creditor who receives a pledge from his debtor, does not thereby incur any obligation to grant him a delay.
V. The plaintiff's endorsers might well, after their endorsement, give him an authentic act recognizing their endorsement of the note, and an authentic subrogation of the mortgage which had passed to them with the note it was intended to secure.
(opinion) GARLAND, J., dissenting. This suit was commenced by executory process, against the defendant, as the endorser of a promissory note, and on a subsequent agreement to pay it. The petition charges him as being personally responsible, and also as the third possessor of the property mortgaged to secure the payment of the note.
It appears that Elam, in March, 1837, sold to P. M. Cuny and W. H. Taylor, a plantation and slaves in the parish of Rapides, for sixty thousand dollars, and took their several notes, with mortgage to secure the price, among them the note now proceeded on, which he, Elam, had transferred to the plaintiff by endorsement. Sometime after this, Cuny resold or retroceded to Elam all his right and interest in the plantation and slaves, and all the notes given were returned, except the one sued on amounting to nine thousand dollars, and one other of one thousand five hundred dollars which Cuny agreed to pay, in consideration of which, Elam permitted him to retain the title and possession of seven valuable slaves; and the whole original sale was thus cancelled. The reason these two notes were not given up, was because Elam had transferred them to Barrett & Co., from whom, through an intermediate person, they had gone into the hands of the plaintiff. The note now sued on, not being paid at maturity by Cuny and Taylor, was protested, and notice given to Elam as the endorser.
On the 19th December, 1840, Elam went before a notary in New Orleans, and acknowledged that he was indebted to plaintiff in the sum of nine thousand dollars, and interest, as endorser of the promissory note aforesaid, which was secured by the mortgage from Cuny and Taylor, to him, Elam. 'And the said Elam being desirous to secure unto said Duncan the payment of the above described note, and the interest thereon until final payment, and for which he is bound unto said Duncan as endorser thereon, as above set forth. -- Now therefore, he, Elam, does hereby pledge and pawn as collateral security, in favor of said G. C. Duncan here present, and accepting for himself, &c.,' a promissory note drawn by Jesse A. Bynum, to the order of and endorsed by said Elam, payable on the 1st of January, 1841, for the sum of eight thousand three hundred and thirty three dollars and thirty three cents, with interest at ten per cent from January 1st, 1839; the payment being secured by a mortgage, &c.; said Bynum having the privilege of postponing the payment of the note until March 1st, 1841, by paying ten per cent interest. And for the purposes above stated, Elam transferred and subrogated Duncan to all his interest, rights and actions, hypothecary or otherwise, against Bynum, on the note and mortgage in case of non-payment. And in case Duncan should be obliged, or see fit, to commence legal proceedings by suit or otherwise, Elam covenanted to pay all costs and expenses attending the collection of Bynum's note.
Bynum's note, due on the 1st of January, 1841, was not paid on that day. Duncan took no steps to collect it, nor did he wait until the expiration of the term to which he, Bynum, had a right to postpone the payment, to wit: the 1st of March, 1841, but on the 22d of February, 1841, without making any effort to make Cuny and Taylor responsible, or to proceed against the plantation in the parish where the sale was passed, or returning to Elam the note of Bynum, the plaintiff commenced this executory proceeding against Elam in a parish where the slaves only, were in his possession, and set up this act of pledge as the ground of his being directly liable.
Without the act of pledge, it is perfectly clear to my mind, that no direct executory proceedings could have been had on the part of the plaintiff against the defendant. Duncan had no right to proceed directly on the original mortgage from Cuny and Taylor to Elam; there being no subrogation as to him, Elam, stood responsible only as endorser of the note and third possessor of the property. The act of pledge is therefore the basis of his action; without it, the plaintiff would have no right to the process he has obtained, and I do not think he should have the benefit of such summary measures as have been taken, without complying with a single stipulation on his part, or offering to surrender the note pledged.
The plaintiff, not satisfied with a lien on a tract of land and slaves, estimated in 1837 to be worth sixty thousand dollars, to secure the payment of nine thousand dollars, induces the defendant to pledge to him a note secured by mortgage for nearly the same sum, and in a few weeks after, without waiting until the expiration of the time, to the end of which Bynum had a right to postpone the payment of his note, proceeds with an order of seizure and sale, without returning the note pledged. One means by which the defendant might have raised the money to have satisfied the debt he owed, was taken from him by the act which entitled the creditor to the process he has resorted to; and I think he ought to restore it, or carry out the contract in good faith, by making some effort to coerce Bynum to pay his note. It is administering the law in a mode that gives every thing to the creditor, and oppresses the debtor in a manner not contemplated by the contract.
After a careful examination of the facts of the case, I am of opinion that the opposition of the defendant should be maintained.
"Louisiana Annual Reports for the Year 1857" by A.N. Ogden; Vol.12, pgs.486 to 488 (California State Law Library 12/2003)
G. CURRIE DUNCAN, President, &c. for the use and benefit of GEORGE WINGFIELD & CO. v. SUN MUTUAL INSURANCE COMPANY; Supreme Court of Louisiana, New Orleans; 12 La. Ann. 486; June, 1857, Decided.
Appeal from the Sixth District Court of New Orleans.
(opinion) SPOFFORD, J. This suit is upon a fire policy to recover a loss upon certain packages of wine. It is brought by George Currie Duncan, in his quality of President of the New Orleans and Carrollton Railroad Company and the Jefferson and Lake Pontchartrain Railroad Company, for the use and benefit of George Wingfield & Co., against the Sun Mutual Insurance Company. It is alleged that the wine belonged to Wingfield & Co., by whom it was deposited in the railroad company's depot at Tivoli Circle, in New Orleans, thence transported for hire in the plaintiffs cars to their depot or wharves on the Lake shore, and there burnt and lost.
The defendants contend that they insured nobody against loss but the railroad company; that there is no privity of contract between them and Wingfield & Co., for which reason that firm has no right of action; and that the railroad company has no right of action, because it has lost nothing. By the terms of the policy, the defendants covenanted to "insure George Currie Duncan, President of the New Orleans and Carrollton Railroad Company, and for the Jefferson and Lake Pontchartrain Railroad Company against loss and damage by fire on merchandize, being such as may be placed in the depots hereinafter named, for conveyance to and from the city to Lake Pontchartrain, to wit: on merchandize contained in the depot at Tivoli Circle, to the amount of $3000; on merchandize contained in the depot at the Lake end of the Jefferson and Lake Pontchartrain Railroad, to the amount of $5000. The risk in the cars is also to be covered by this insurance to the extent of the amount of this policy, to wit: $8000, for one year; and the said company do hereby promise and agree to make good unto the said insured, their executors, administrators and assigns, all such loss or damage, not exceeding in amount the sum hereby insured, as shall happen by fire to the property, as above specified, during one year, &c., the said loss or damage to be estimated according to the true and actual value of the said property at the time it shall happen, &c., &c."
The usual condition is annexed to the policy, that "goods held in trust or on commission are to be declared or insured as such, otherwise this policy will not cover such property."
No such words as "for whom it may concern," or "in trust for," are employed in the policy. It is true that there is nothing sacramental or indispensable in these ordinary phrases. If upon a general survey of the provisions of the policy and the circumstances under which it was procured, it appears that the intention of the company was to insure for the benefit of any person in interest, although not named, the common interest of the parties shall not be defeated for the want of technical or even customary phrases. If, on the other hand, the most natural construction of the policy is, that the party named as assured only sought to protect his own interest, the contract is not to be extended so as to cover the interest of a third person. Thus, it is held that a commission merchant who is insured against loss by fire upon "goods, as well the property of the insured as held by him on commission," in a certain store, may recover in his own name the value not only of his own goods destroyed by fire but of those of his constituents in the same store.
But the general rule is thus stated by Mr. Phillips: "Insurance made by a person in his own name only, without any indication in the policy that any other is interested, can be applied only to his own proper interest in the subject, or his interest as trustee."
In the present case the defendants only insured the railroad company against loss or damage by fire upon merchandize in certain of its depots, or on the transit between them. It is true the policy does not imply that the merchandize must necessarily belong to the company. But no matter to whom it might belong, there is nothing in the policy or in the evidence to indicate that the defendants intended to do anything more than indemnify the railroad company against the loss or damage the company might sustain from the destruction or deterioration of such merchandize by fire. There is nothing in the circumstance of a railroad company taking out such a policy to lead the underwriters to suppose that the company sought anything beyond its own protection. There is no allegation or proof of a usage of railroad companies to insure for the benefit of their customers, nor of a contract with Wingfield & Co., or instructions from them to insure, nor of a payment of this loss by the plaintiff to Wingfield & Co., nor even of a liability to pay it, or an undertaking on its part to warrant against all losses by fire.
On the other hand, that the company might have an insurable interest in goods intrusted to it by bailors for transportation is clear. The doctrine upon this subject is well stated by Mr. Angell in his treatise on Fire and Life Insurance, Sec. 77: "An inland carrier will, in general, have an insurable interest and a right to provide an indemnity against such accidents to the property placed in his hands, as will render him liable under his contract. Thus, it it was held that common carriers along the line of a canal had an insurable interest to the full value of all the goods placed in their hands which they might protect under the general words of insurance ordinarily employed." But in the following section of the same treatise it is shown that the practice is to allege that the goods intrusted to him as a common carrier were consumed by fire, and that the assured thereby became liable to pay to the respective owners a sum equal to that named in the policy.
It was remarked by Mr. C. J. Jones in the case of DeForest v. Fulton Fire Insurance Company, already cited from Hall's Reports, that "a carrier may insure the goods he contracts to carry; yet he has neither the legal title nor the beneficial interest in them; but he is responsible for their loss. His insurance is upon the goods; yet his indemnity is against the consequences of his implied guaranty for their safe carriage, and not against the loss or deterioration of the property by the perils insured against."
As the interest of Wingfield & Co. in the wine was not covered by the policy in this case, even by implication, it follows that the railroad company is the real plaintiff. This was also asserted by counsel representing that side, on the oral argument. And as the company did not own the wine, it should show some loss or liability of its own on account of fire to authorize a recovery; for the insurance only promised to indemnify the company for its own loss or damage by fire.
The testimony is that a burning steamboat came suddenly against the wharf where the goods were deposited and set them on fire, and that it was impossible to save them. So far as the evidence goes in this case this would seem to have been an accidental calamity beyond the control of the company or its servants. And the Article 2725 of our Civil Code declares that "carriers and watermen may be liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental or uncontrollable events."
As there is neither allegation nor proof that the railroad company, which alone was insured, has sustained any loss or incurred any liability to Wingfield & Co. or any other person, by reason of the destruction of the wine which belonged to Wingfield & Co. there should be a judgment of non-suit.
It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment against the plaintiff as in case of non-suit, he paying costs in both courts.
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ABNER L. DUNCAN'S Heirs And Representatives, Plaintiffs In Error v. THE UNITED STATES; Supreme Court of the United States; 32 U.S. 435; 8 L. Ed. 739; January 30, 1833, Decided.
HEFFERNAN'S Adm'r &c. v. GRYMES'S Adm'r &c.; Supreme Court of Virginia; 29 Va. 512; 2 Leigh 512; February, 1831
DUNCAN LINTON, CHARLOTTE LINTON and her husband, FRANCIS SURGETTE, STEPHEN DUNCAN guardian of MARY LINTON and JOHN LINTON, Minors, Plaintiffs in error, v. FREDERICK STANTON; Supreme Court of the United States; 53 U.S. 423; 13 L. Ed. 1050; 12 HOW 423; March 1, 1852, Decided December 1851 Term.
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ALEXANDER FERGUSON appellant v. CHARLES H. SUTPHEN appellee; Supreme Court of Illinois, at Springfield; 8 Ill. 547; 3 Gilm. 547; December, 1846, Decided.
ALEXANDER FERGUSON et al., Appellants, vs. ASA TALLMADGE, Appellee; Supreme Court of Illinois, at Ottawa; 20 Ill. 581; April, 1858, Decided.
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EDWARD DUNCAN v. J.H. BLOOD, and VALZ, and DE RHAM; Supreme Court of Louisiana, New Orleans; 5 La. Ann. 11; January, 1850, Decided.
DIGGS, McKEEVER & Co., v. JESSE R. KIRKLAND & Co., and LOWE, PATTISON & Co. -- TAYLOR & RICHARDSON, Intervenors; Supreme Court of Louisiana, New Orleans; 8 La. Ann. 309; June, 1853, Decided.
L. C. DUNCAN v. LABOUISSE et als; Supreme Court of Louisiana, New Orleans; 9 La. Ann. 49; January, 1854, Decided.
JAMISON & McINTOSH v. L. C. DUNCAN; Supreme Court of Louisiana, New Orleans; 12 La. Ann. 785; December, 1857, Decided.
WIDOW CONANT et al. v. L. MILLAUDON et al; Supreme Court of Louisiana, New Orleans; 5 La. Ann. 542; June, 1850, Decided.
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MICHAEL DUNCAN v. MARY DUNCAN; No. 3389, Supreme Court of Louisiana, New Orleans; 26 La. Ann. 532; May, 1874, Decided.
MARY DUNCAN vs. MICHAEL DUNCAN; No. 5438, Supreme Court of Louisiana, New Orleans; 29 La. Ann. 829; November, 1877, Decided.
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