Duncan research files of
"Louisiana Annual Reports for the Year 1850" by William W. King; Vol.5, pgs.11 to 12 (California State Law Library 12/2003; MAD's extract)
EDWARD DUNCAN v. J.H. BLOOD, and VALZ, and DE RHAM; Supreme Court of Louisiana, New Orleans; 5 La. Ann. 11; January, 1850, Decided.
Appeal by plaintiff from the Fourth District Court of New Orleans.
(opinion) The defendants, Valz and De Rham, of New Orleans, were the agents of Collman & Stalterfoht, of Liverpool, and were in the habit of making advances to Joseph H. Blood, the other defendant, on shipments of produce to the Liverpool house, in 1846 and 1847. The plaintiff Edward Duncan, with Joseph Nash, were employed by Blood as his brokers, in the purchase of produce in New Orleans, and they being anxious to make a shipment of flour, applied to Blood to procure from his friends an advance on the shipment. On application to Valz and De Rham, they refused to make an advance to either Duncan or Nash, but offered to advance on a shipment predicated on the responsibility of Blood alone. This was communicated to Nash, who then requested him to allow the shipment to go forward in his name, and under his responsibility. To which Blood consenting, Duncan and Nash bought two lots of flour, which were shipped to the Liverpool house on consignment. The plaintiff was not only conusant of this arrangement, but carried it into effect. The freight was engaged by Blood, the bills of lading were made out, shipped by J.H. Blood & Co., and consigned to Collman & Stalterfoht; invoices of these shipments, with others made by Blood at the same time, were prepared in the name of Blood, with advices that they be sold on his account and risk. On the delivery of the bills of lading and invoices to Valz and De Rham, the advance was made by them on account of the Liverpool house, which was immediately paid over to the parties by Blood.
The result of the shipments made by Blood was, that he fell largely in debt at the close of the season to the Liverpool house. Blood bought out Nash's interest in the adventure, and this suit is for Duncan's share of the proceeds of the sales of the shipments, less the advance. The Liverpool house and their agents here insist on the right of retaining them, as they are carried to Blood's credit in account.
The judgment of the district court was against Blood, but in favor of the other defendants, and the appeal has been taken by the plaintiff.
Waiving the question as to the liability of the defendants, Valz and De Rham, for the retention of the funds by the Liverpool house, let us look for a moment at the contract between the parties. The appellees refused to deal with Duncan or Nash; they would advance to Blood alone on his responsibility. The consignment was to be made, and was made on his account and risk exclusively. The accounts were to be rendered to him alone, and the proceeds subjected exclusively to his order. They have accordingly been applied to the payment of his debts resulting from his shipments -- he assenting thereto, and the good faith of the Liverpool house being unquestioned. The plaintiff has thought proper to make this disposition of his property. He has his remedy against Blood, but none against the other parties.
The judgment of the district court is therefore affirmed, with costs.
"Louisiana Annual Reports for the Year 1853" by W.M. Randolph; Vol.8, pgs.309 to 311 (California State Law Library 12/2003; MAD's extract)
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.
Appeal from the Second District Court of New Orleans.
(opinion) VOORHIES, J. The plaintiffs sue on an accepted draft drawn by J. R. Kirkland & Co., of Brandon, Mississippi, on Lowe, Pattison & Co., of New Orleans, for the sum of $1500, duly protested for non-payment by the acceptors, of which the drawers were duly notified. They also claim of J. R. Kirkland & Co., the sum of $2250.03, for goods invoiced and shipped to them, including an item of $134.37, as the balance due them by the firm of J. R. Kirkland & Brother, as stated in the account annexed to their petition, at the foot of which the following credit is noted: "By their draft on and accepted by Lowe, Fattison & Co., protested, $1500."
Under a writ of attachment, sued out by the plaintiffs, the Sheriff seized two hogsheads of sugar, which were afterwards bonded by Taylor & Richardson, intervenors, who claimed the ownership thereof.
D. J. Phelps, W. H. Wright, and Wright, Williams & Co., were garnisheed. But their answers to the interrogatories propounded to them by the plaintiffs, fully exonerate them from any liability.
The defendants, J. R. Kirkland & Co., claim the sum of $889.45, as a balance resulting in their favor from two drafts drawn by them in October, 1851, on Wright, Williams & Co., each for the sum of $1500, after crediting plaintiffs with the amount of invoices charged in their account.
It is proper we should here notice a bill of exceptions found in the record. On the trial the testimony of Edward Duncan was objected to on the score of interest. This witness stated, on his voir dire, that he was employed by plaintiffs at a fixed salary, but if one-third of the profits exceeded his salary, then he was to receive said profits in lieu thereof. The objection, we think, was properly overruled by the District Judge. The interest was contingent and too remote, in our opinion, to exclude the witness; it was such an interest as could only affect his credibility. According to the construction given to the provisions of our Code in relation to the competency of witnesses, it is clear that the interest which legally excludes a witness must be the prospect of gaining an advantage or profit by the judgment in the cause in which he may be called upon to testify, and which would be an immediate consequence of such judgment.
It is urged that the drafts on Wright, Williams & Co., have been improperly and illegally imputed to the payment of the plaintiffs' claim against J. R. Kirkland & Brother. When the firm of J. R. Kirkland & Brother was superseded by that of J. R. Kirkland & Co., which was composed of the same partners, with the addition of Richardson, it was indebted to the plaintiffs in a balance of $134.37, as stated in the account referred to in the testimony of Edward Duncan. This balance resulted after allowing J. R. Kirkland & Brother, as credits, the two drafts of $1500 each, one on Lowe, Pattison & Co., and the other on Wright, Williams & Co. J. R. Kirkland & Co. in their answer expressly declare that as the draft on Lowe, Pattison & Co. was not paid by the acceptor, it therefore created no indebtedness, and limited their demand to the two drafts on Wright, Williams & Co. As the draft on Lowe, Pattison & Co. had already been credited to the account of J. R. Kirkland & Brother, it was evidently credited in error to the account of J. R. Kirkland & Co., as stated by the witness Duncan. The draft on Wright, Williams & Co., unaccounted for, should, we think, have been credited to this account. The testimony of Michael Duncan shows, that he went to Brandon, Mississippi, in December, 1851, when he there presented to J. R. Kirkland & Co. plaintiffs' account; Richardson was present in the store when he presented it to H. Kirkland, who said that they were not then able to pay it, but that he or his brother would go to the city in the course of two or three weeks, and would settle it. He saw J. R. Kirkland in the evening. No objections were made, by any of the parties, to the account presented by him, which he left with J. R. Kirkland & Co. Why have not J. R. Kirkland & Co. produced this account? It was certainly approved, and we may fairly presume it was identical with the one under consideration. In their letter to the plaintiffs of the 10th March, 1852, they say: "You were aware of our having been burnt out, and you must have known that it required some little time to arrange our business. We had a desire to settle our account with you, and all other of our creditors, at the earliest possible moment, but there is little or no money in the country, and we are unable to make collections at present, and, consequently, we are unable to liquidate our debts until collections are made. We have just learned from Messrs. Richardson & Taylor that you had collected a part of the debt due you by attaching some goods belonging to them." From the tenor of this letter they evidently considered themselves indebted to the plaintiffs when this suit was instituted; and it is equally evident that they could not have been so without having considered the drafts on Lowe, Pattison & Co. and Wright, Williams & Co., as properly credited to the account of J. R. Kirkland & Brother. That Richardson so considered it, is strongly indicated in the letter of Taylor & Richardson, written by himself to the plaintiffs, and on the same day that the letter of J. R. Kirkland & Co. was written, the 10th of March, 1852, in which they say: "We are in receipt of information this evening that two hogsheads of sugar, purchased of Messrs. Wright, Williams & Co., have been attached at your instance. We hereby authorize you to Cr. J. R. Kirkland & Co. for one-half of the cost of the sugar, which shall have early attention. If this arrangement will suit you, forward the sugar immediately as we are much in want of it. The writer thinks there is no cause of alarm about the debts of J. R. Kirkland & Co., and will be much disappointed if all the debts due by them are not paid in six months." Why did Richardson propose to credit J. R. Kirkland & Co. with one half of the cost of the sugar, if he did not consider himself liable as one of the members of that firm? Why express disappointment if all its debts were not paid in six months? On the whole, we are of opinion that the drafts on Wright, Williams & Co. and on Lowe, Pattison & Co. were imputed to the payment of the account of J. R. Kirkland & Brother, from which the balance of $134.37 resulted, in accordance to the understanding of all the parties.
There is no evidence of any contract stipulating the payment of interest as alleged by the plaintiffs. We do not think the claim of the plaintiffs for damages on the draft well founded, under the statute. The evidence shows that the sugar attached belonged to Taylor & Richardson, by whom it was bonded. But, according to the consent given in their letter, one-half of its proceeds must be applied to the payment of the plaintiffs' claims.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed. That the plaintiffs do recover of the defendants, Jesse R. Kirkland, William H. Kirkland, William H. Richardson, B. M. Lowe, Alexander Pattison, and T. N. Ward, as syndic of the insolvent estate of William H. Pattison, in solido, the sum of fifteen hundred dollars, with legal interest from the 14th of January, 1852, the date of protest, and three dollars cost of protest, and that said plaintiffs do recover of Jesse R. Kirkland, William H. Kirkland, and William H. Richardson, in solido, the further sum of seven hundred and fifty dollars and three cents, with legal interest from judicial demand, the costs of both Courts to be borne by all the defendants.
"Louisiana Annual Reports for the Year 1854" by W.M. Randolph; Vol.9, pgs.49 to 54 (pgs.49-54 and 607 from California State Law Library 12/2003; published case includes diagram)
L. C. DUNCAN v. LABOUISSE et als; Supreme Court of Louisiana, New Orleans; 9 La. Ann. 49; January, 1854, Decided.
Appeal from the Second District Court of New Orleans.
COUNSEL: G. B. Duncan & C. Roselius, for plaintiff and appellant:
It has been decided again and again that titles even may be affected by parol testimony, and in cases a thousand fold stronger than the one before the Court. For instance -- where a purchaser is sued to compel a compliance with a sale, and avers that he is not bound by it, evidence is admissible to show that he offered his note at long dates. Again, one stands by and sees his property sold as belonging to another, will not be permitted to set up his title in opposition to a bona fide purchaser. Silence is as binding and expressive as a positive consent.
Durant & Horner for Jamison & McIntosh, (the builders, who were also enjoined.) The only question of law presented by this case, is, "Did the Judge in the lower Court correctly refuse to hear the testimony of witnesses to prove that the iron pillar which forms a part of the party-wall, was erected with the consent and at the instance of J. P. Labouisse, one of the defendants?" (MAD: more not included here)
(opinion) BUCHANAN, J. The plaintiff alleges that the defendant is obstructing him in the exercise of a legal right -- that of erecting one half of the wall of his building upon the property of the defendant which is contiguous to his own -- a right accorded to him by Art. 671 of the Code. The question which is submitted to our consideration is, whether the Court below was right in refusing to permit the plaintiffs to give parol evidence of an agreement on the part of the defendant that plaintiff should put up an iron pillar that would occupy nine inches of the front of defendant's property on the street, he himself having determined to build a house, with granite pillars on the front of the basement story.
We are of opinion that the Art. 671 has not taken away from the owners of ground lots "in the cities, towns or suburbs of this State" the right of finishing the whole front of the houses that they may erect upon their lots, in such manner as their taste may dictate. The wall spoken of in that article is the side wall, which supports equally the buildings erected on both sides of a line dividing the property of two individuals. The name given to the wall in the French text of the Code, "mur mitoyen," expresses that idea clearly. Toullier thus defines "mur mitoyen": "Celui qui est place sur les extremites de deux heritages contigues, qui est assis moitie sur le terrain de l'un des proprietaires, et moitie sur le terrain de l'autre." The article 672 of our Code also confirms this interpretation, "If the neighbor be willing to contribute, &c. then this wall is a wall in common between the proprietors."
Indeed the very offer of proof of an agreement on the subject, concedes that the article of the Code, unassisted, would not suffice to establish the right claimed by plaintiff. There is no dispute about the other facts in the cause. And as to this fact of an agreement to erect iron columns in front of the property of defendant, it is not the proof, but the kind of proof (parol) that is objected to. Upon a mature consideration of the law and the facts, I consider, with the Judge below, that no proof should be admitted of such an agreement, but such proof as may legally establish the title to real estate. Any pact which restrains the owner's control or enjoyment of his property, is to some extent an alienation of his property; and when the subject matter is real estate, must be evidenced in the mode required for the alienation of real estate -- by written proof. (MAD: more not included here) It may, therefore be viewed as still more contrary to the law of property than the other; and no good reason is perceived why agreements to extend such alienation beyond the letter of the Code, should be exempted from the formalities required for alienations of real estate generally.
(opinion) OGDEN, J. On the trial of this cause in the Court below, the plaintiff offered in evidence a plan of the buildings erected by him, on Carondelet street, as originally prepared for the use of the architect, and then offered by parol evidence to show, that at the special instance and request of the defendant, Labouisse, who was the proprietor of the adjoining lot, the plan was changed and the buildings erected according to another plan approved by Labouisse, by which an iron column with three sides was erected at the projection of the partition wall on the street, so as to show a front and a face equally on the lots of both proprietors. The Court below rejected the evidence, on the ground that the tendency of it was to affect the title to real estate, and that the law requires such proof to be in writing. It is undoubtedly true that when written proof is required by law, parol evidence cannot be admitted to supersede its use, and the only question is whether the principle is applicable to the facts of this case. The plaintiff, being the first to build on his lots, had a right by law to rest one-half of his wall on his neighbor's lot, provided stones or bricks were used as high as the first story, and provided the whole thickness of the wall, not including the plastering, should not exceed eighteen inches. If the plaintiff had attempted to build the partition wall with other materials than stone or brick, the defendant could have enjoined him from so doing. The iron column about which the parties are contending, rests equally on the respective fronts of their lots, and whether it is to be considered as forming part of the partition wall or not it is not material to consider. We agree with the Judge of the Court below, that each proprietor has a right to the display of his whole front according to his own taste and judgment, and if the defendant is compelled to have an iron front instead of a granite front to his building which he desires to be put up, it does affect the enjoyment of his right in real estate. If the plaintiff was endeavoring to enforce the execution of an agreement to that effect on the part of the defendant and to use one-half of the iron column on his neighbor's lot, we would not consider parol evidence competent to establish such a right; but the agreement, if ever made, was executed; the column has been erected; it is a construction made on the soil belonging to the defendant. Art. 498 of the Code declares that all the constructions made on or within the soil are supposed to be done by the owner. The defendant wishes to cut away the half of this column resting on his own lot; the plaintiff contests his right to do so on the ground that it will materially injure his building, and that it was placed there by a special agreement with defendant, and for their joint benefit. Considering that the presumption of the law is that this construction found on the defendant's soil, was placed there by himself -- that article 853 of the Code declares, opposition may be made to every species of new work from which injury is apprehended, whether the work be in the city or in the country, in places built up or not built up; and considering further that the Civil Code, Art. 1810 and 1811 declares that actions without words, and even silence and inaction, are, under certain circumstances, presumptive evidence of a contract; we consider that the defendant would be in equity estopped from the right he claims of substituting a granite column in place of the iron one now resting partly on his lot, if by so doing the plaintiff's building would be materially injured thereby, and it can be established that the column was placed as it now is, under circumstances which would imply a consent on the part of the defendant. The principles of equitable estoppel laid down in the case of McMasters v. the Commissioners of the Atchafalaya Railroad Co., are in every respect applicable to the present case. All the facts and circumstances tending to establish the consent of Labouisse to placing the column as it now stands are susceptible of proof by parol evidence without violating any of the principles which seem to have governed the decision of the Court below. If the column can be so changed as to cause no detriment to the plaintiff, the defendant would have the right, even if his consent is proved, to make the change; but he would be bound to furnish security to the plaintiff to pay any damages which might be occasioned by the change. See Arts. 863 and 864 of the Civil Code.
Justice VOORHIES concurs in this opinion.
Benjamin, Micou & Finney, for a re-hearing.
1. It is submitted to the Court that the servitude in question is created by law; results from the ownership, of which the title of the party is the evidence. There can be nothing taken in this case as establishing this servitude, in any other mode than by the the title. All other evidence would be an absurdity.
The title then establishing the servitude, we have to deal with the wall or the work placed upon the land affected by the servitude.
This servitude is attached to the lateral lines of the plaintiff's lot -- that is, to the part in contact with the lands of his adjoining neighbors. They exist in favor of contiguous estates and of course in the whole extent of the line of contact.
The wall in common is an entirety -- indivisible -- or thing existing in its relation to the two contiguous estates: in that light alone it is to be considered in respect to the evidence offered. The rights at either extremity are dependent on that relation -- not that there may not be different rights created by contract making it divisible; but so far as the action of the Court is sought, it is entire. The front end is a part of the wall and so is the rear. Did the defendant consent to the materials of which it should be constructed? whether of mud, of stone, brick or iron, it is immaterial to the present inquiry and dependant on the evidence as to usage, &c. which are matters dehors the law question.
The Article 671 treats of servitudes and the relations of estates to each other; it, of course, confines itself to the line of contact of the contiguous estates, but thereby regulates the front as far as it purports to affect it. Thus the servitude is created throughout the whole extent of the lateral line -- where does this line terminate? on its contact with the front or street line. A line is length, without breadth, and consequently the servitude continues up to the street. Beyond this it is not necessary to go, because it is not contended that any rights beyond the line of the public way are in controversy. But this common wall exists up to the street line, each proprietor having a right to use his half as he chooses. Can the servitude be held to cease at any point, short of the front line? at the line of a front wall, or any other work of the owner? The code negatives such an idea. The inner line of a front wall or work, is not the line at which the servitude terminates.
2. By Art. 672 the owner of the subjected estate can make the wall common at any time by paying one half the cost of the wall and he is entitled to notice from the other party when he is about constructing the wall, so that he may contribute or not to its expense; if notice be given the wall can only be used on the payment of the original cost and not its value at the time it is made use of. How is this notice to be given -- in writing or verbally? (MAD: more not included here) But suppose the notice must be in writing or written evidence is required of the assent of the defendant to this mode of constructing the wall or rather the front end of it, was not the evidence offered and rejected, written?
If the plaintiff had covered a quire of paper with descriptions of what he intended to do, could it have as well apprized the defendant of the proposed work as the plans and drafts which he furnished him? Let your honors cast your eyes upon the plans, and then judge whether any words could convey the idea as well as the pictures there represented? are not these plans written, in every sense of the term? Is there no writing, -- no words written on the plans? Let them speak for themselves. (MAD: diagram of lot and building, mention of stores of G.B. Duncan Esq., L.C. Duncan, and others, not included here)
If these plans and writings were delivered to the defendant, and acted upon by both parties, and the work done accordingly, the assent was given and is proved -- technically proved -- if the evidence is admissible. Do they not constitute a species of title of the wall and its front -- binding upon the plaintiff of which the defendant had the benefit? Suppose the plaintiff wanted to change it, would not defendant hold him to it, and insist on the production of the plans in Court by plaintiff or prove their contents by copies of the testimony of the draughtsmen?
Suppose that the plaintiff had erected the entire common wall, from the rear line to the front line, of iron, instead of brick; and had done so even without the knowledge or consent or acquiescence of the defendant, would it even then be competent for the defendant to remove, to cut away or mutilate the whole or any part of that entire wall? Omne majus in se minus continet. If he could not remove the whole line of the wall, can he remove a part only, and such part or portion of the whole as his caprice may dictate? The conduct, rights and duties of the defendant in such a case, and it is the very case at bar, are defined, regulated and controlled, it is respectfully submitted, by the Article 681 of the Civil Code.
The defendant wholly disregarded the provisions of this article, and proceeded ex suo proprio motu, to mutilate and to remove a part of the common wall and without any notice to his neighbor, or any precautionary measures, "ascertained by persons skilled in building." Hence the absolute necessity of this injunction that plaintiff may be protected from the injurious effects and illegal conduct of his neighbor.
The ruling of the District Court assumes a degree of refinement on questions of evidence, relative to real estate, at once impracticable and inconsistent with all the relations of men in civil society. All agreements of men, touching their property, are made on the earth, and it would be simply absurd to say that such agreements could not in any form, be controlled by parol testimony, because it touched the realty. The District Judge assumes, at page 27 of the Transcript, that the erection of a common wall "is a form of alienation." No such assumption is authorized by any text or fair interpretation of the law. Suppose the entire destruction of edifices, the walls of which had been made common, either by agreement or simple operation of law -- would it be contended, could it be maintained, that either of the adjoining proprietors had alienated his land, and had lost forever all proprietary interest? In the present case all ownership in defendant's land, was, as is set forth in the bills of exception, disclaimed by the plaintiff. In all cases and under all circumstances, the adjoining proprietor never loses his ownership because his neighbor has exercised his own rights. There is no direct, or absolute, or even temporary or quasi alienation, nor is any alienation contemplated by the law. All that the law authorizes is a right, in certain specified cases, to use. This is a personal right, to be exercised in cases specified, but is not a real right susceptible of alienation per se, but only by alienation of the entire Estate.
Application for re-hearing refused.
It is therefore adjudged and decreed, that the judgment of the District Court be affirmed, with costs.
(opinion) SLIDELL, C. J. I think the parol evidence was properly excluded, for the reasons given by the District Judge.
The claim for damages is very vaguely made; the particulars of damage are not stated. That subject does not appear to have been considered at the trial, and it seems unnecessary now to decide whether, in an action for damages, properly brought by Duncan, for indemnity for any injury sustained in consequence of Labouisse's breach of the alleged agreement, parol evidence of that agreement would be admissible.
The right to bring such action was reserved by the judgment below.
I think the judgment should be affirmed.
Pg.607, same source: New Orleans, December, 1854. DUNCAN v. LABOUISSE. The following amended decree in the above case, reported ante p.49, was accidentally omitted:
SLIDELL, C. J. The opinions of the Judges respectively remain unchanged, except as to the propriety of the reservation added to the judgment of affirmance, by way of amendment.
It is therefore ordered that the application for rehearing be dismissed.
It is further ordered, that the judgment in this cause by this court rendered on the 23d of January last, be amended so as to read as follows:
It is therefore decreed, that the judgment of the District Court be affirmed, with costs, without any prejudice to any right of action the said Duncan may have for damages for the breach by said Labouisse, of the alleged formal agreement between said Labouisse and said Duncan, mentioned in the petition.
"Louisiana Annual Reports for the Year 1857" by A.N. Ogden; Vol.12, pgs.785 to 787 (California State Law Library 12/2003; MAD's extract)
JAMISON & McINTOSH v. L. C. DUNCAN; Supreme Court of Louisiana, New Orleans; 12 La. Ann. 785; December, 1857, Decided.
Appeal from the Second District Court of New Orleans.
(opinion) BUCHANAN, J. This suit has grown out of that of Duncan v. Labouisse and others, reported in 9th Annual. Its history may be stated as follows: Lucius C. Duncan, the defendant, being the owner of a lot of ground on Carondelet street, in the city of New Orleans, on which he erected a house, availed himself of the right given him by the Art. 671 of the Code, to put one-half of the side-wall of his house on a lot adjoining, which was then vacant. Subsequently, Mr. Labouisse, the owner of the vacant lot, intending to improve the same, made a contract with Jamison & McIntosh, the plaintiffs, by which the latter agreed to erect for Labouisse, for a price stipulated, a five story store, of which the depth from the street, height of stories, size of timbers, openings, slating, copper and tin works, flooring, partitions, plastering, stairways, marble mantels, flagging, water-works, and all other works and materials, whether specified or not, were to be of the same quality and finish as the adjoining store (above mentioned), belonging to Lucius C. Duncan, with some exceptions specified; of which one was, that the entire front of the store was to be of the best Quincy granite, built and finished off precisely in the same manner as another store indicated.
Now, the store of Mr. Duncan was supported in front upon cast iron columns of which one faced the side wall, on the side towards Labouisse's lot; one-half of said column standing in front of the portion of the side wall which had been built on Labouisse's land. In the execution of the contract with Labouisse, Jamison & McIntosh proceeded to make use of the side wall erected by Duncan, as a wall in common, without having made the previous indemnification required by Art. 672 of the Code, in order to render it such. They also commenced cutting the cast iron column at the corner of the wall in two, perpendicularly, for the purpose of removing the one-half thereof, and replacing the half thus removed by a column of Quincy granite, in conformity with their contract aforesaid. At this stage of the proceedings, Duncan commenced suit against Labouisse and Jamison & McIntosh, alleging that the iron column in question had been erected by express agreement with Labouisse, and that the half of the side wall, erected by Duncan, had not been paid for by Labouisse. The petition concluded with a prayer for an injunction to prevent Labouisse and Jamison & McIntosh, "from proceeding to the injury or destruction of the said wall or any part thereof." A writ of injunction issued upon this petition, commanding Jamison & McIntosh and Labouisse "not to injure the iron column of the wall of the building."
Judgment was rendered in that suit in the District Court, decreeing "that the injunction so far as it prohibits the use of the division wall between the properties of the plaintiff and the defendant Labouisse, be maintained, and that the defendants be prohibited from the further construction of any works upon said wall until it shall have been made a wall in common, as provided by law; and that as respects the cutting of the iron pillar in front of said wall, up to the division line of the two properties, that the injunction be dissolved." From this judgment a suspensive appeal was taken to this court, and the judgment of the District Court was affirmed, "without prejudice to Duncan's right of action for damages for the breach of Labouisse of the alleged parol agreement between Labouisse and Duncan, mentioned in the petition." 9 La. Ann. 49 and 607.
It appears that Jamison & McIntosh suspended all work upon the building from the time that the injunction was served upon them (April, 1853), until after the judgment of the Supreme Court was rendered (January, 1854); and have brought the present action for a thousand dollars and upwards, damages alleged to have been incurred by the issuing of the injunction aforesaid ...
It is manifest that the elements of damage which make up the judgment herein, are erroneous. There was no reason for the suspension of the work upon the building contract, except the volition of plaintiffs. The writ of injunction served upon them, merely required of them not to injure or destroy the iron column. And the evidence, even of plaintiffs' witnesses, proves that the building might have been completed according to contract, without disobedience to this injunction. The only consequence would have been, that as thus completed, the corner of Labouisse's front wall adjoining Duncan, would have been supported by an iron column instead of a granite one, which the contract called for. It is proved by several witnesses, and the statement is not contradicted, that the iron column would have supported the additional weight. Supposing that the building had been thus completed, the evidence shows us that, upon the dissolution of the injunction, the iron column, or the half of it, could have been removed without difficulty or danger, and a granite column substituted in its place. The column to be substituted would necessarily have been of the same height as the one removed, for we have seen that the building contract refers to Duncan's store, as the guide for the height of the stories. The extra cost of this operation is all that the plaintiffs could have been properly entitled to under the evidence.
In the case of Duncan v. Labouisse, this court, for the first time, interpreted the law of walls in common, in a very important particular. Basing ourselves upon the doctrine of one of the most eminent of French commentators (Toullier), we held that the Article 671 of our Code, was derogatory of the right of property, and should therefore be strictly construed; and that the right of the first proprietor of land in cities, who builds, to take possession of the land of his neighbor for the foundation of his building, must be strictly confined to the side walls, and cannot prevent his neighbor, who afterwards builds, from occupying the whole front of his land, as shown by his titles, in such a manner as his taste may dictate. That this question was by no means unattended with difficulty, in its application to this case at least, is proved by the fact, that two of the five Judges of this court dissented from the judgment rendered.
Accordingly, it was held by the judgment of the District Court in the case of Duncan v. Labouisse, which we affirmed, that those plaintiffs had no right to make use of the side wall which Duncan had erected at his sole expense, before paying Duncan the half of the cost of erecting the same; and the evidence shows that the plaintiffs paid nothing towards the cost of the said wall, until after judgment of the District Court pronounced in the injunction suit. Yet the whole foundation of the present claim for damages is a supposed hindrance thrown in the way of plaintiffs in executing a building contract, which confessedly required for its execution the use of the side wall thus erected by the defendant.
He who seeks equity must do equity. We are of opinion that plaintiffs have failed to make out a cause of action.
It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and judgment is hereby rendered for the heirs of defendant, with costs of both courts.
"Louisiana Annual Reports for the Year 1850" by William W. King; Vol.5, pgs.542 to 544 (California State Law Library 12/2003; MAD's extract)
WIDOW CONANT et al. v. L. MILLAUDON et al; Supreme Court of Louisiana, New Orleans; 5 La. Ann. 542; June, 1850, Decided.
Appeal from the Fifth District Court of New Orleans.
The judgment of the court was pronounced by SLIDELL, J. This suit is brought to contest an election of directors of the New Orleans and Carrollton Railroad Company. The defendants being returned as elected, took their seats, and are in office.
Mrs. Duncan, by her husband acting as her attorney, gave one hundred votes, for the defendants, upon stock standing in her name. Mr. Duncan had already voted one hundred votes on stock standing in his name. By the charter, one hundred votes is the maximum allowed to any person, how great soever may be the number of his shares. His votes as agent of his wife were received under protest by the plaintiffs. He made oath before the commissioners, that the stock in her name was bona fide her property. It appears that Mrs. Duncan became the owner of the stock after her marriage; and the plaintiffs invoke the presumption of law, that property acquired by the spouses in the name of either of them during the marriage, is community. At the trial of the cause, a marriage contract was offered in evidence by the defendants, which contains a stipulation, that the community of acquets should not exist between the parties. The plaintiffs do not now deny that Mrs. Duncan was the real and separate owner of the stock, and had a right to vote; but they say, that the vote should have been rejected by the commissioners, because they had not before them legal evidence of the fact, and that the legality of the vote given must repose solely upon the evidence offered before the judges of the election. We are not prepared to say, that for the purposes of an election, the evidence was insufficient. But however that may be, it is now fully established that the vote was one which Mrs. Duncan was legally entitled to give. It would be against reason to set aside an election effected by legal votes, because full proof of their being legal was not laid before the commissioners; and we are aware of no precedent for such a course. (MAD: more not included here)
It appears that on the books of the bank Palmer and Blatchford, trustees, stood as owners of one hundred shares of stock. R. M. Blatchford, trustee, stood on the books as owner of one hundred shares. Palmer and Blatchford, trustees, and R. M. Blatchford, trustee, respectively voted one hundred votes. These were contested, on the ground that the deeds of trust were not exhibited, and no proof was adduced for whom they were trustees. Their authority to vote is questioned, and it is also urged, that it may be that the stock was held by those parties for persons who have voted to the limit of the charter upon other shares, and that the two trusts may be for one and the same person. The plaintiffs refer to the clause of the charter which prescribes, that no person, corporation, or firm shall be entitled to a greater number than one hundred votes.
It is inferrable, from the evidence in the cause, that Blatchford and Palmer are residents of New York. They acted at the election by an attorney.
In Brown v. Bissell, 6 Cowan 109, the court considered as indubitable, the right of a person to vote upon stock standing in his name, although held by him in trust for another. The legal estate is in him, said the court, and until divested by assignment, either voluntary or compulsory, he is the only person entitled to vote. We see no reason for adopting a different rule here with regard to foreign stockholders of our corporations holding in the capacity of trustees, and whose capacity as such the corporation has recognized on its stock books.
As to the argument derived from the charter, if it were affirmatively shown, that the trusts were either for the same individual, or for the benefit of other stockholders who had already exercised the privilege of voting up to the limit, then perhaps a case might arise for the rejection of the votes. But the plaintiffs have not proved that such was the case; and we concur with the position assumed by the defendants, that the bare possibility that the votes are held for the use of such persons, is not to be regarded. The contingency is too remote to deserve notice as a legal presumption. Any one may be an owner of this stock; and the probabilities are, therefore, quite against the hypothesis, that it is held for some of the stockholders who had already voted. The mere assertion, that the votes may possibly be illegal, is not sufficient to put the defendants on proof of their legality. The hypothesis presented by the plaintiffs, assumes a fraud upon the charter; and fraud is not to be presumed.
It is unnecessary to consider the alleged illegality of the reception of the votes of Mrs. Burthe, Meux and Holcombe, and the alleged illegality of the rejection of the votes offered by the proxy of another stockholder; because, if the plaintiff's case was made out with regard to them, the defendants would still have a sufficient number of legal votes to maintain their election.
L. Millaudon, one of the elected, is said to be ineligible under the clause in the charter which excludes from the direction insolvent persons. The only attempt to prove that he came within that provision consisted in showing that he was indebted to the company on a stock loan in the sum of about $ 100,000, including interest. It further appeared, that the interest on this loan had been in arrears for several years, and that in February, 1850, the company took in payment of the debt, his notes at one, two, three, four, and five years from date, bearing interest at six per cent. It does not appear that the notes representing the original debt had ever been protested. It was said, in argument by the counsel for the plaintiffs, that the transaction could be accounted for only upon one of two hypotheses: either that Millaudon was insolvent, or that there had been undue indulgence to him by the directors. However extraordinary the course of the directors, under the evidence presented, may appear, the court cannot consider the facts shown as establishing the insolvency of the party in question.
The defendant Duncan is alleged to be disqualified to sit as a director, because he is an alien. By a statute enacted in 1842, it was declared that "no person shall hereafter be elected or appointed a director of any bank in this State who shall not, at the time of his election or appointment, be a citizen of the United States, and of this State." At the same session of the Legislature a statute was enacted entitled "an act to revive the charters of the several banks located in the city of New Orleans, and for other purposes." This statute is mainly composed of regulations intended to control the future issues and operations of the banks, whose previous wild and disastrous career is a matter of history. But it also contained provisions authorizing such bank as desired to do so, to abandon their banking privileges and business, and retain their corporate powers and privileges so far only as their continuance might be necessary to retain the property in any public works and improvements, and to manage and carry on the same until the termination of their charters. The New Orleans and Carrollton Railroad Company fell within the class contemplated by the statute. It was both a bank and a railroad company. It abandoned its banking privileges; discontinued doing business as a bank; proceeded to the liquidation of its banking affairs; and has long since ceased to be a bank. It has been for several years a railroad company. The legislative interference with banking corporations, with which the statute books of 1842, 1843, &c. abound, grew out of the gross abuses and the disastrous results of the banking business. The exclusion of foreigners was, perhaps, considered one of the means to prevent future abuses; or more probably it was dictated by an apprehension that foreign capitalists, by getting control of boards of direction, might control through them the monetary affairs of the State. There is nothing in the legislation in question, upon a reasonable view of its subject matter and of its general scope and intendment, to authorize the belief that the lawgiver intended to discourage aliens from being interested in what are denominated in the statute works of public improvement, by excluding them from a participation in their management. The directors of this company are not directors of a bank, and the statutory prohibition is therefore inapplicable to their case.
It is therefore decreed, that the judgment of the district court be reversed, and that the petition be dismissed; the plaintiffs 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.
Go to the Orleans Par. LA Court Records Part 2
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.
Go to the Orleans Par. LA Court Records Part 3
LOGAN HUNTON v. THE UNITED STATES; United States Court of Claims; 6  U.S. Cong. Rep. C.C. 174; May 4, 1858
BUTLER vs. KENNER & al; Supreme Court of the State of Louisiana, Eastern District; 2 Mart. (n.s.) 274; March, 1824, Decided.
GEORGE CURRIE DUNCAN v. LUCIUS W. ELAM; Supreme Court of Louisiana, Western District, Alexandria; 1 Rob. 135; October, 1841, Decided.
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.
Go to the Orleans Par. LA Court Records Part 5
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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