
    No. 12,628.
    St. Landry State Bank vs. Julius Meyers et als.
    Syllabus.
    1. Unless error, fraud or latent ambiguity be averred, parol testimony is inadmissible against or beyond what is recited in a written act, or as to what may have been said before, or at the time of making it, or since.
    2. Application is made of the principle upon which rests the maxim: “Expréselo imius personae, rel rei, est exchislo alterms.”
    
    3. Nor can a party be permitted to accept and enjoy the benefits of a contract and at the same time repudiate Its obligations.
    On Reheaking.
    1. Where a contract is made between persons professing to act for themselves and not as representatives of others, and one of the contracting parties seeks to fix a liability arising therefrom upon an alleged principal of the other, the burden of proof rests upon the party, so seeking, to show that the contract was made by the other on behalf of such principal and inured to the benefit of the latter.
    2. The meaning of a word, used in a contract, is to be ascertained by considering it in its relation to the context, -and -to the immediate subject matter of such contract, and not by attributing to it an absolute signification, irrespective of the connection in which it is used.
    3. Where a provision inserted in a written contract by one of the contracting parties, is susceptible of two interpretations, the other contracting party is entitled to the interpretation most favorable to him, but parol evidence maybe admitted without special plea, to explain the ambiguity.
    
      APPEAL from the Eleventh Judicial District, Parish of St. Landry —Dupre, J.
    
    
      E. D. Estilleite, Thomas II. Lewis and E. B. DuBuisson for Plaintiff, Appellee.
    
      Saunders & Miller, Kenneth Baililio and William G. Perrault for Defendants, Appellants.
    On rehearing by ÜMonkoe, J.
   The opinion of the court was delivered by

Blanchard, J.

The plaintiff is a corporation doing a banking business at Opelousas, Louisiana. In January, 1896, Alphonse Levy was its president and Julius Meyers was one of its directors. They had been filling such positions for several years.

In that month there was published in one of the newspapers of the town a quarterly statement of the condition of the bank. This was furnished under the oath of the cashier, J. T. Skipper. It dkowed the bank to be not only solvent, but prosperous. Overdrafts to the extent of $4,527.17 only were declared to exist.

This statement was false and perjured.

One month later Levy, the bank’s president, was dead by his own hand, and an investigation into the affairs of the bank disclosed that it had been looted and wrecked.

This was accomplished, in the main, by means of overdrafts drawn by the mercantile firm of J. Meyers & Oo., the largest business house in the parish.

The members of this firm were Julius Meyers and Alphonse Levy. The aggregate of the overdrafts of the firm exceeded $54,000, an amount in excess of the capital stock of the bank.

The announcement of the insolvency of J. Meyers & Co. followed and liquidators to wind up its affairs were appointed. Before its failure the real estate owned by the firm and its members had been covered by mortgages for large amounts.

Criminal proceedings were taken against Julius Meyers and J. T. Skipper for the part they had taken in wrecking the bank.

While the liquidation of the affairs of J. Meyers & Co. was being proeeedecl with, a new commercial concern, known as the Opelousas Mercantile Company, Limited, arose upon its ruins. The organizers and stockholders of this association were the brother-in-law and four nephews of Julius Meyers. One of the nephews, Isaac Roos, became president of the corporation.

This concern installed itself at the same stand and proceeded to conduct the same character of business as that done by J. Meyers & Co.

It became the virtual successor of that firm, and straightway undertook to possess itself of all the assets of tjhe insolvent house, including valuable real estate in several parishes. To this end it proceeded to purchase at a large discount (about 35 per cent, on the desliar) the outstanding indebtedness of J. Meyers & Co., and in a short time had acquired it all, save about $200.

So that at the time the present suit was brought, the Mercantile Oo. was, practically, the only creditor of the defunct house, holding claims against it and against Julius Meyers of over $100,000.

There is evidence it was considered by some of the people of Opelousas as “Julius Meyers” — that is to say, as the continuation of the same business, at the same stand, by Meyers under a different name.

. Following the disclosure of the looting of the bank, an effort, and it seems a successful one, was made to save it from ruin.

Five of the directors advanced funds to tide it over its difficulties.

This was done in the form of deposits for which the bank issued certificates of deposit. The amount so deposited aggregated $13,000, of • which Julius Meyers furnished $5000, taking, under date of March 12, 1896, a deposit certificate which reads as follows: “Julius Meyers has deposited in this bank five thousand dollars payable subject to conditions (see agreement), in current funds on the return of this certificate properly endorsed.”

The agreement referred to was dated March 11, 1896, and was to the effect that the five directors who signed it had agreed to deposit in the bank the respective amounts set opposite their names, and to leave the same on deposit for the space of twelve months, unless the Board of Directors should decide that the financial condition of the bank admitted of the withdrawal of the same, in whole or in part, before that time.

At the same time Meyers, notwithstanding the failure of his house, seems to have been able to make a further advance to the bank of $5,000, this time in the form of the purchase by him of that much interest in the overdraft which the insolvent and dissolved firm of J. Meyers & Co. owed the bank.

The liquidators of his firm (of whom he was one) also made an advance to the bank, about the same time, in the nature of an anticipated dividend upon the bank’s claim .against the firm.

This last advance amounted to $10,125. It thus appears that the bank received in March, 1896, on account of the overdraft of J. Meyers & Co., $15,125, and had advanced to it by the five directors aforesaid the further sum of $13,000, making- in all $28,125, enabling it to continue business.

Following the death of Alphonse Levy, E. M. Boagni had become president of the bank.

On June 17, 1896, a letter was written him from New Orleans suggesting terms of settlement or purchase of the bank’s claim for overdraft against J. Meyers & Co., in these words:—

“Mr. Upton says that if the St. Landry bank will agree to accept 35 per cení, on the face of its debt, keeping, besides, what has already been paid to it, he believes that the creditors can be 'settled with at 35 per cent, of the face of their claims. I am satisfied the oiler will be made if the bank will accept. Please let us know at once whether the bank will settle on the terms proposed. If it will, Mr. Roos will come up at once.”

This letter was written by Mr. E. D. Saunders of the New Orleans bar, who had been engaged professionally in connection with the failure of J. Meyers & Oo. in Opelousas.

The “Mr. Upton,” referred to in the letter, is Mr. IT. E. Upton, also of the New Orleans bar. As the suggestion of settlement came from him, it is important to inquire whom he was representing in proposing it. His testimony was not taken and he does not appear as counsel in the case.

It is claimed by defendants that he was the attorney of Mr. Henry Roos, Sr., one of the proposing purchasers of the bank’s claim against Meyers & Go. This Mr. Roos was the brother-in-law of Julius Meyers.

The president of iihe bank, however, testified that he considered the proposition contained in the S/aunders’ letter as coming from Julius Meyers, since it was submitted at the instance of Mr. Upton, whom he knew to be the attorney, or counsel, of Meyers. Certain it is that Mr. Upton had been the adviser of Meyers in his business trouble and had gone to Opelousas in that capacity. Isaac Roos, who testified, while claiming that Upton represented Henry Roos, Sr., in making the offer, admits that he was at the same time the attorney of Julius Meyers. Both Isaac Roos and Henry Roos, Sr., were in New Orleans at the time and the “Mr. Roos” of whom the letter speaks might have been either of them. Both were stockholders in the Opelousas Mercantile Company.

Mr. Boagni, president of the bank, answered the Saunders letter on the 19th of June — two days later — as follows: “That the bank would, for immediate settlement of the J. Meyers & Oo. claim, accept 35 per cent, on the face of its claim, not taking into account nor being held to account for money already received.”

Later it developed that Isaac Roos and his associates, who formed or were about to form, the Opelousas Mercantile Go., Limited, were to be the purchasers of the bank’s claims against J. Meyers & Co.

In pursuance of the purpose of this corporation to acquire control by discount of all the claims outstanding against that firm, Isaac Roos appeared at the bank on July 31, 1896, with a form for the sale and assignment of the bank’s claim to himself and associates.

This was handed to the president of the bank, who caused duplicate type-written copies to be made, first adding in clauses toi make it conform to the bank’s understanding of the transaction.

But Roos did not propose to deal solely with the bank’s president in the matter of the purchase of so large a claim, and suggested that the Directors be assembled to authorize the deal.

Accordingly a meeting of the Directors was then and there called, and at that meeting the agreement proposed to be entered into, as typewritten in the bank, together with an important addition made thereto by Isaac Roos, was submitted, and a resolution was passed formally adopting it and authorizing the president to execute the same on behalf of the bank. The agreement was recited at length in this resolution and spread upon the minutes of the meeting.

Mr. Roos was present at the bank before and during the time the meeting of directors was held, had carefully read over and re-read the paper embodying the agreement as the same had been type-written at the bank, had demanded the insertion of a clause proposed by him, this had been done, and he then fully assented to it, and as thus agreed on it was submitted to the Directors and adopted by them.

It was then signed by E. M. Boagni, president of the bank, and by Isaac Roos foi himself “and associates”, without naming the latter.

The clause, and the only one, Roos had demanded should be inserted, was as follows: “This does not include the $8,044.61 now on deposit in this bank for account of liquidators.”

As the case turns on the construction to be placed upon the agreement so executed, we copy it in full as follows:

“For value received, the St. Landry State Bank, of Opelousas, La., through E. M. Boagni, its president, and pursuant to a resolution of its Board of Directors (a copy of which is hereto attached), hereby sells, assigns, transfers and delivers unto Isaac Roos, Henry Roos, Sr., Isidore Silverberg, Nathan F. Roos and Ilenry Roos, Jr., all of its claim for Fifty-Four Thousand Three Hundred and Thirty-Seven and 46-100 Dollars ($54,337.46) against the firm of J. Meyers & Co., of Opelousas, La. (being the amount due said bank by said firm) fully subrogating said Isaac Roos, ITenry Roos, Sr., Isidore Silverberg, Nathan F. Roos and Henry Roos, Jr., to all its rights and actions on said claim, to be exercised and enforced by them as fully as they might have been by said Bank, but for this transfer, sale and assignment.
“It is understood and agreed that this transfer is made without recourse on us.
“That we are not to pay or to he held to account for money receive<ij from the liquidators, or frdm Julius Meyers. 1 This does not include the $8,044.61 now on deposit in this Banile for account of the liquidators.
“That Six Thousand Three Hundred and Thirty-Nine and 37-100 Dollars to be paid in cash; that Six Thousand Three Hundred and Thirty-Nine and 37-100 Dollars, to be paid on or before Twelve Months from date of this agreement; and that Six Thousand Three Hundred and Thirty-Nine and 37-100 Dollars, to be paid on or before Twenty-Four Months from date of this agreement. The deferred two payments to be evidenced by notes signed by Isaac Roos, Henry Roos, Sr., Isidore Silverberg, Nathán F. Roos and Henry Roos, Jr., to be endorsed by the Stock Company to be formed, said notes to bear six per cent, interest from date, and attorney’s fees to be fixed at 10 per cent, in case of suit to enforce payment. I will not assert, nor attempt to enforce against the firm of J. Meyers & Co., nor against the Liquidators, or members thereof, or their estates, any claim or liability whatever arising from or growing out of the endorsement by said J. Meyers & Co., or by said members thereof as endorsers or sureties of any notes held or owned by us, however acquired.”

The particular clause, about the melaning of which this legal warfare is waged, is that italicized, which, it will be observed, includes the sentence Roos had caused to be inserted.

The bank stipulated: “We are not to pay or to be held to account for money received from the liquidators, or from Julius Meyers”. Roos agreed to this with the addendum: “This does not include the $8,044.61 now on deposit in this bank for account of the liquidators.”

What other moneys had been received from the liquidators and from Julius Meyers?

As already shown:

L Amount Meyers deposited on the 12th of March, under agreement with the other directors..................$ 5,000 00

2. Amount he paid to the bank on account of purchase of an interest in the overdraft due the bank by J. Meyers & Co............................................. 5,000 00

8. Amount advanced by the liquidators of J. Meyers & Co. as anticipated dividend on the overdraft............. 10,125 00

Total...........................................$20,125 00

There is no contention over the last two items of $5,000 and $10,125. It is not disputed that they are covered and were intended to be covered by the terms of the agreement.

The whole controversy is over the first item of $5,000.

The bank contends it is clearly embraced within the scope of the language used and that such was the intendment of the parties at the time.

Defendants assert just the contrary.

Too great latitude was permitted in the court below in the reception of evidence explanatory of the contract and its meaning. None of the answers filed by the several defendants averred error, fraud, or latent ambiguity, and that being' so, the familiar rule of evidence, that parol testimony is inadmissible» against or beyond what is recited in a written act, or as to what may have been said before, or at the time of making it, or since, should have been more strictly enforced. C. C. 2276; H. D. Vol. 1, Evidence XV. (d), No. 3 et seq. Bills of exception by both sides attest the effort at exclusion.

There was much conflict of testimony. Boagni, bank president, testified the contract meant to include all the money received, except that deposiled by the liquidators. lie says he and others for the bank figured at the time what the bank would realize, under the arrangement, on the overdraft account, and made it out from 70 per cent to 12 per cent, and to get this they included all moneys whatsoever received from Meyers and the liquidators, except the $8,044.61 which was excluded by the express terms of the agreement.

The cashier and several of the directors corroborate him in this, and declare they would not have authorized the transaction had they not considered the $5,000, in controversy herein, included within the moneys the bank was to retain and not be held to account for.

Isaac Roos, the other signer of the contract, testifies that neither the $5,000 nor the certificate representing it, was mentioned, had nothing to do with the transaction, and was not included in the moneys the bank was authorized to retain.

There was testimony corroborative of him in- thesel particulars.

It is not our purpose to analyze the evidence pro and con. Suffice it that our consideration of the case, judging it by the evidence, impresses us that the balance of probability, weight of circumstance, and preponderance of testimony, all support the contention of the plaintiff.

But we need not go beyond the contract itself. It is sufficiently clear and explicit to disclose its own meaning. The bank was not to pay back or be held accountable for money it had, prior to that time, received from the liquidators, or from Julius Meyers. This was not confined to moneys paid to it or received by it on account of, or in reference to, the overdraft of Meyers & Co. It included all moneys the parties named had delivered -into the possession of the bank, except that expressly excluded.

When Roos came to stipulate for exceptions, he must, at his peril, have the excepting clause embrace all money intended not to be included. JSxpressio unius personae, vel réi, exclusio alberius.

It will not do to say there was a certificate of deposit out for this $5,000 and the amount was due to the holder.

The certificate was noil-negotiable in form, and, besides, the evidence discloses it was at that time, certainly just after, in the possession of Isaac Roos. With the consummation of this purchase of overdraft from the bank, Roos and his associates were carrying out a purpose to acquire, at large discount, all the outstanding claims against L Meyers & Co. They did acquire them all and thus came into the control of all the property and assets of the firm, including the deposit certificate. The liquidation of the firm’s affairs became merged into the business of the Opelousas Mercantile Co., Limited, of which Isaac Roos was president, and the chief liquidator, J'. R. Norman, became the business manager of the corporation.

It thus appears that Roos and his associates, who constitute the Mercantile Co., have a direct interest in maintaining Julius Meyers’ title to the $5,000.00 certificate of deposit. This was admitted on cross-examination by Isaac Roos.

It is quite true that the proposition first made the bank to purchase the overdraft, embodied in the letter of Mr. Saunders of date June 17th, only contemplated that the bank should keep what had already been “paid” to it — i. e. the $5,000.00 paid by Julius Meyers for purchase of an interest in the overdraft, and the $10,125.00 paid by the liquidators as anticipated dividend. But the bank changed this in its letter of June 19th, so as to make it read that the bank should not be held to account for money already deceived, and when the agreement came to be written up this was still further enlarged and made to read that the bank should not pay, or be held to account for money received from the liquidators or from Julius Meyers.

The negotiation to purchase the overdraft, therefore, ended with a stipulation meaning that the bank should not have to pay to Julius Meyers what he had deposited there, as well as that it should not be held to account for money received from him, or from the liqiiidators otherwise.

It will be readily seen there was a marked difference in the language used by Saunders and that used by Boagni, president of the bank, in their respective letters, as well as that incorporated in the agreement itself when it came to be drawn up and signed. The agreement followed the line adopted in Boagni’s letter, using, however, fuller and broader terms, and was accepted by Roos.

“Money received” is not the equivalent of “money paid.” The former has a larger, more comprehensive scope and meaning.

The bank did not answer Saunders agreeing to settle on the terms his letter proposed.

It accepted a proposition to settle on an agreed basis of 35 per cent., but added other words to the effect that it would retain all moneys it had received from the parties named.

Saunders made use of the words “paid to it” — meaning money paid to the bank on the overdraft or in reference to it.

Boagni made use of the words “already received” — meaning moneys theretofore received by the bank from the parties who figured in the transactions with it, not confining it merely to moneys paid to it on the claims it held against Meyers & Oo., or received in reference to such claims.

The man, who, as a member of the firm, owed the bank’s claim for overdraft, had placed other money there besides the $5,000.00 paid in the purchase, individually, of an interest in the claim, and the words of the contract with Roos and associates were made broad enough in their scope to include such other funds.

This deposit was money the bank was using as it did other bank funds. It had been received by the bank, as hereofore seen, from Meyers to assist it over difficulties which had been brought upon it by him. What more natural or probable, therefore, than that the bank should demand retention of this fund, along with the other moneys, in a transaction consummating the sale,, at a big discount, of its claim for the overdraft to parties who were the close relatives of Julius Meyers, who were buying up all claims against him and his firm, getting possession of all its property and assets, and who had formed or were about to form a corporation which was the practical successor of the firm?

The fact that Boagni, as president of the bank, wrote across the face of the duplicate contract in the possession of Roos, the day following its execution, thd words: “Received payment as per this agreement,” does not militate against this view. That was but.an acknowledgment of payment to him of the cash portion of the purchase money of the sale of the overdraft, and of the reception of the notes for the deferred portion of the purchase money — as per the agreement. It would indeed have been more business-like to have then demanded and insisted upon the delivery of the deposit certificate; but, as already shown, this certificate was not in negotiable form, and the bank had the money it called for in possession, which was the all important matter.

The president of the bank testified that Julius Meyers told him after the contract was signed that Isaac Roos had the $5,000.00 deposit certificate. Meyers was in Opelousas when the ease was on trial, but did not go on the stand and this statement of the president was not challenged.

In the conversation alluded to Boagni asked Meyers for the certificate. Then it was that the latter referred him to Roos, telling him Roos had it and he would have to deal with him in reference to it. There was here neither a claim of ownership of the certificate, nor a repudiation of anything Roos had done or contracted to do in reference to the certificate.

There are other proofs of the agency of Roos to bind Meyers in this transaction with the bank. In it he disposes of Meyers’ interest (that which he had purchased) in the overdraft. Meyers has never repudiated this. If it does not prove agency, it proves something more than agency, identification of interest between Meyers and the other defendants herein.

In the contract he also stipulated in favor of Julius Meyers that the bank should release him and his firm from liability as endorser or surety on any notes of other persons held by the bank.

Meyers appears to be enjoying the benefit of this stipulation; yet it is now claimed for him that Roos was without authority to represent him in the matter. He ismot to be permitted to take the benefits conferred by the contract and at the same time repudiate its obligations.

These and other circumstances support the contention that one of Isaac Roos’ associates in the deal with the bank was Julius Meyers, and if not this, then that Isaac Roos had authority to speak and act for him in the transaction. The court below erred in holding otherwise on this branch of the case.

Our conclusions are that the contract of July 31, 1896, did by its terms include the $5,000.00 deposit, and that Isaac Roos acted therein for Julius Meyers as well as for himself and other associates, and that Meyers, if he did not confer antecedent authority, subsequently assented to and acquiesced in what was done, thus ratifying the same.

The judgment appealed from must be amended in this particular.

It is, therefore, ordered, adjudged and decreed that plaintiff bank be and is recognized as the owner, as against these defendants, of the certificates of deposit for five thousand dollars issued by it to Julius Meyers on the 12th of March, A. D. 1896, and it is ordered that defendants herein deliver said certificate of deposit to the said bank.

It is further ordered, adjudged and decreed that on failure to do so within a reasonable time, plaintiff bank, in the alternative, do have and recover from defendants in solido the sum of five thousand dollars, with legal interest from judicial demand until paid, costs of both courts to be taxed against defendants.

And as thus amended the judgment appealed from is affirmed.

On Rehearing.

Monroe, J.

The death, in 1896, of Alphonse Levy, its president, led to the discovery that the plaintiff bank was in a condition of greafl financial embarrassment. Its capital was $50,000.00; the account of the commercial firm of J. Meyers & Oo., of which Levy was the managing partner, was overdrawn to the extent of $54,33*7.41, and that firm was not in a condition to make the overdraft good, though it was supposed, at that time, that its assets equalled, or exceeded its liabilities, and that the bank would eventually recover a large proportion, if not the whole, of its claim. In the meanwhile, however, it was necessary that something should be done to tide over the immediate trouble; and two measures of relief were adopted, to-wit: {A petition was presented to the District Court by several large creditors of J. Meyers & Co., including the bank, praying for the appointment of liquidators, and also praying that! the liquidators so appointed be authorized to advance, to the bank, $10,000.00, on account of the dividend which it was believed would eventually be declared in its favor. In these prayers, Julius Meyers, the surviving partner, who was also a director of the bank, and several creditors of the firm, other than the petitioners, joined, and the order was made accordingly. In addition to this, an agreement was entered into between the directors of the bank which reads as follows:

“We, the undersigned members of the Board of Directors of the St. “ Landry State Bank, hereby agree to deposit in said bank, this day, the “respective amounts opposite our names, and to maintain and leave “ said deposits in said bank for the space of twelve months from date, unless, in the opinion of the majority of the Board of Directors, the “ financial condition of the bank shall be such, as to allow said deposit- “ ors, from time to time, within said twelve months, to withdraw, either “ a portion, or the whole, of their aforesaid, respective deposits.
“E. 11. Boagni, two thousand dollars ($2,000.00).
“J. T. Stewart, two thousand dollars ($2,000.00).
“I. M. Lichtenstein, two thousand dollars .($2,000.00).
“Ant. Dietlein, two thousand dollars ($2,000.00).
“Julius Meyers, five thousand dollars ($5,000.00).
And, this agreement having been carried into effect, each of the depositors received a certificate, reading, save as to the name and amount “Julius Meyers has deposited in this bank “five thousand “ dollars, payable, subject to conditions (see agreement) in current “ funds, on the return of this certificate.
(Signed) “Fritz Dietlein, Cashier.”

The bank also received, from Julius Meyers, a further sum of five thousand dollars, which was paid on account of the purchase by him of a pro rata interest in the claim of the bank against his late firm, so that the bank had received, by March 12, 1896, from these different sources, an aggregate of $28,000.00, to which is to be added a small amount, otherwise obtained through the liquidators; and, Mr. E. M. Boagni having succeeded Mr. Levy as president, the doors of the bank were kept open.

The liquidators appointed by the court were ITenry Newman, a creditor residing in New Orleans, J. T. Stewart, a director in the plaintiff bank, and Julius Meyers, the surviving partner. The latter gentleman took no active part in the liquidation, Mr. Newman was represented by Mr. J. R. Norman, who was sent from New Orleans for that purpose, and who, with Mr. Stewart, conducted the liquidation. Within a short time, the liquidators and some of the creditors were engaged in negotiations with certain persons, who, apparently, contemplated buying the outstanding claims against J. Meyers & Oo., and we find, in the record, the following letters — the one from Mr. Saunders of the New Orleans bar, addressed to Mr. Boagni, president of the plaintiff bank, and the other, the reply thereto. Mr. Saunders writes:

“June 17, 1896.
“Yours of recent date, regarding agreement of Iiiller and Newman “ to share the responsibility reed. The desired, and promised agree“ment will be prepared and forwarded. Mr. Upton says, that, if the “ St. Landry Bank will agree to accept 35 per cent, on the face of its “ debt, keeping, besides, what has already been paid to it, he believes that the creditors can be settled with at 35 per cent, .on the face of “ their claims. I am satisfied that this offer will be made — if the bank “ will accept. Please let us know, at once, whether the bank will settle “ on the terms proposed. If it will, Mr. Roos will come up at once. “ An immediate reply will greatly oblige us all.
“(Signed) E. D. Saunders."

Mr. Saunders, at that time was representing the liquidators, as their attorney, and had no interest in the persons who proposed to make the offer to which he refers, though exactly whom he was representing does not appear to have been very definitely .known to his correspondent. Mr. Boagni’s reply is dated June.19th, and reads as follows:

“Replying to your valued favor of the 17th inst., I beg to say that “ bank would, for immediate settlement of the J. Meyers & Co. claim, “ accept 35 per cent, on the face of its claim, not taking into account, “ nor being held to account for, money already received.
“(Signed) E. M. Boagni, Pres, etc.”

It requires rather close observation to detect a difference between the terms of the offer, such as it is, as made by Mr. Saunders, and the terms of the acceptance by Mr. Boagni. It may be discovered, however, that Mr. Saunders writes “If the St. Landry State Bank “will agree to accept 35 per cent, on the face of its debt, “ keeping, besides, what has been paid to it,” etc., whereas “ Mr. Boagni replies “that bank would, for immediate settle“ment of the J. Meyers & Co. claim, accept 35 per cent, on the a face of its claim, not taking- into account, nor being held to account “for, money already received." Mr. Saunders understood that the acceptance was in accordance with the terms of the offer, and he so informed the people interested. Mr. Boagni claims that it was intended as modifying the terms of the offer, and was, in effect, a counter proposition, the purpose of which was, by the use of the word received, instead of the word paid, as used by Mr. Saunders, to include, in the amounts for which the bank was not to account, not only the $10,000.00 received from the liquidators, and the $5,000.00 received from Meyers, in payment, but also the $5,000.00 which Meyers, in common with the other directors, had deposited in, and loaned to, the bank. He says, in his testimony, speaking to Mr. Saunders, “I meant that to make a “ proposition that we were not to pay back money that was paid to us.” Being asked by Mr. Saunders “Did you at any time, state to me, either “ in writing or verbally, that your acceptance was different from my “ proposition ?” He answered “no sir, not to my recollection.”

M. Stewart, being interrogated by Mr. Saunders, upon the same subject, gives the folio-wing testimony: Questions by Mr. Saunders: “Then I understand you to say that the directors intended to submit a “different proposition from the one I submitted? ‘Yes, sir.’ Did the “ directors intend to call my attention, or the attention of any one else, “ to the difference between the propositions made by me, and the proposition th'ey made? A. They made a different one. Q. Did they “ intend to call my attention to the fact that my proposition was differ- “ ent from theirs ? A. They thought that you might be able to dis- “ tinguish the difference.”

Following the exchange of letters, between Saunders and Boagni, Mr. Henry Roos, Sr., of New' Orleans, being one of the parties to whom the said letters referred, went to Opelousas with a view to looking into the affairs of J. Meyers & Oo. and of determining whether he and his associates would make the offer which had been thus suggested as likely to be made, but he returned home without having taken any definite action in the matter.

In the meantime, the negotiations appear to have made some progress, and, upon January 26th, Mr. Boagni, for the bank, wrote to the liquidators:

“Gentlemen — In the matter of action in the J. Meyers & Oo. affair, “ as agreed, delay expires to-morrow. I wish to be informed as to “results of investigations of Mr. Henry Roos, et al. We intend to “ proceed, unless something tangible is presented.
“(Signed) E. M. Boagni, President.”

This letter reached the liquidators the day before Mr. Roos’ departure, and its contents were made known to him, and the next day, as he was leaving to return to New Orleans, the liquidators handed him a letter, to the following effect:

“Mr. Henry Boos — ■
“We are in receipt of a communication from the St. Landry State “ Bank, dated the 26th inst. (of) the contents of which you are fully “ aware, and which forces us to ask of you information, which must be “ definite, as to the result of your investigations here into the affairs “ of J. Meyers & Co., in liquidation, which was made with the view of a settlement of the said business, so mentioned between us. In the “ event that you see proper to accept the settlement proposed, that said “ proposition must be in writing, and a duplicate one to be delivered to “ Mr. Saunders, or the other mailed to us here, and that no proposi- “ tion will be entertained unless, accompanied by certified check for “ $5,000.00, as a guarantee of good faith on part of would-be purchasers, subject to withdrawal provided the deal is not consummated. You “must also understand that no proposition for less than the contem- “ plated settlement will be entertained.
“(Signed) II. Newman, per Norman,
“J. T. Stewart,
“Liquidators of J. Meyers & Qo.”

Some delay seems to have ensued after the writing of this letter, but, upon July 30th, Isaac Roos, who was associated with Henry Roos, Sr., in the proposed investment, went to Opelousas, from New Orleans, taking with him the skeleton of a projet of an agreement, which had been prepared by Mr. Saunders, and was to be completed and signed by him, for himself and associates, and by the St, Landry Bank, on its own behalf, for the purchase, by Roos & Co., of the claims of the bank against J. Meyers & Co. in liquidation. There can be no doubt, we think, that Roos’ understanding, at that time, derived from Saunders, was, that the bank for the purpose of the trade, or settlement, which was to be made, was to hold on to the $10,000.00, which had been paid to it by the liquidators, and to the $5,000.00, which had been paid by Julius Meyers, but the $5,000.00 which had been deposited, and loaned, by Meyers did not enter into his calculations. His associates in the matter were Henry Roos, Sr., who is a brother-in-law of Julius Meyers, Isidore Silverburg, a nephew of Meyers, and Nathan F. Roos, and Henry Roos, Jr., nephews of Meyers’ wife. The purpose of the associates was to acquire all outstanding claims against J. Meyers & Co., and re-establish, and carry on, by means of a mercantile company, composed of themselves, the business which had been conducted by that firm. The meeting between the parties, that is to say, Isaac Roos, representing himself and his associates, and Mr. Boagni, and others, representing the bank, took place at the bank, on July 31st, and resulted in a contract, in the following terms, to-wit:

“Opelousas, La., July 31, 1898.
“For value received, the St. Landry State Bank of Opelousas, through E. M. Boagni, its president, and pursuant to a resolution of “ its Board of Directors (a copy of which is hereto attached), hereby “ sells, assigns, transfers, and delivers, unto Isaac Roos, Henry Roos, Sr., Isadore Silverburg, Nathan F. Roos, and Henry Roos, Jr., all of “ its claim, for fifty-four thousand, three hundred and thirty-seven “46-100 dollars ($54,387.46), against the firm of J. Meyers & Co., of “ Opelousas, La. (being the amount due said bank by said firm), fully “ subrogating said Isaac Roos to all its rights and actions on said “ claim, to be exercised and enforced by them as fully as they might “have been by said bank but for this transfer, salé and assignment. “It is understood and agreed that this transfer is made without recourse “ on us (that we are not to pay, or to be held to account for, money “received from the liquidators, or from Julius Meyers; this does not “ include the $8,044.81, now on deposit in this bank for account of the liquidators).
“That six thousand, three hundred and thirty-nine and 37-100 dol- “ lars to be paid in cash. That six thousand, three hundred and thirty-“nine 37-100 dollars to be paid on or before twelve months from the “date of this agreement. And that six thousand, three hundred and thirty-nine 37-100 dollars to be paid on or before twenty-four months “ from the date of this agreement. The deferred two payments to be “ evidenced by notes, signed by Isaac Roos, Henry Roos, Sr., Isadore Silverburg, Nathan F. Roos, and Henry Roos, Jr., and to be indorsed by the stock company to be formed, said notes to bear six per cent. interest from date, and attorney’s fees to be fixed at ten per cent., in case of suit to enforce payment.
“I will not assert nor attempt to enforce against the firm of J. “ Meyers & Oo., nor against the liquidators, or members thereof, or their “ estates, any claim or liability, whatever, arising from, or growing out “ of, the indorsement by said J. Meyers & Oo. or by said members “thereof, as indorsers, or sureties of any notes held or owned by us, “ however acquired.
“(Signed) St. Landry State Bank,
E. M. Bokom,¿President.
“(Signed) Isaac Roos and Associates."

It appears that the type-written projet, prepared by Mr. Saunders, contained only the first and last clauses, as they appear in this contract, i. e., the clause beginning “for value received,” and ending “sale and assignment;” and the clause beginning “I will not assert,” and ending “however acquired;” and that the other clauses, those out of which this litigation has arisen were inserted by the representatives of the bank; the words, “this does not include the $8,044.61 now on “ deposit in this ba^ik for account of the liquidators,” being added just before the instrument was signed, at the suggestion of Mr. Roos, and for the reason that the account thus mentioned had been collected in the course of the liquidation of the firm of I. Meyers & Co., and deposited in the bank by the liquidators, and it was thought best to make it perfectly clear that it was not to be retained by the bank, as money which it had received from the liquidators, in the sense in which it had received the $10,000.00. Several persons were present during the completion and signing of the contract, and, from their testimony, it does not appear that the ñame of Julius Meyers was mentioned, or that anything was said about the certificate which had been issued to him for the $'5,000.00 deposited, and which was attempted to be seized at the inception of the suit. The evidence shows that Meyers had given to Isaac Roos his power of attorney to act in his place as liquidator, but the instrument was strictly confined to that subject. It is also shown that Roos represented Meyers, that is to say, he consulted with Meyers’ attorney, etc., in connection with a criminal prosecution which had been instituted against him, growing out of the relations of his firm with the bank. Several of the witnesses for the plaintiff testify, also, that they were under the impression that Roos was authorized to represent Meyers, generally, but no one states that either Meyers or Roos ever said so, nor is there any evidence that Roos acted for Meyers at any time, except .in-the matters mentioned above, and one other, to-wit: the day following the signing of the contract, Roos spoke to Boagni about the claim of a Mr. Andrus against J. Meyers & Co., asking whether said claim, or-part of it, could not be paid from the $5,000.00 which Meyers had deposited in the bank; and he testifies that Meyers had authorized him to do so. He also says that Boagni said that he would see about it, or something of that kind; and'¿Boagni testifies in substance, that he was so much surprised at the proposition that he had nothing to say. On that same day, August 1, the stipulations of the contract were carried out in so far as that the cash payment was made and the notes were signed by all the associates except two, whose signatures were not very important, financially, and were obtained after-wards; and a receipt was written across the face of the duplicate, in possession of the associates, in the following terms:

“Received payment as per this agreement; Opelousas, La., Aug. 1st, “ 189C. (Signed) E. M. Boagni, President.”

Nothing, whatever, was said at the time of the payment thus made and of the delivery of the notes, and the signing of the receipt, concerning the $5,000.00 deposit of Julius Meyers, or about the certificate which had been given (herefor. Boagni testifies that, at some other time, later on, he spoke to Isaac Roos about the certificate, and that Roos promised to deliver it, but Roos, categorically and emphatically, denies this statement, and it is conclusively shown that, about August 15th, Boagni, Roos, Saunders, Norman and Baillio were present in the bank, for the purpose of settling another matter, and that, upon Boagni’s speaking of the bank’s having a claim to said certificate, Roos exhibited great surprise and asked him why he had never spoken of it before.

It may be remarked, in concluding this statement of the ease, that Mr. Upton, whose name is mentioned in Mr. Saunders’ letter, is shown to have been the attorney of Julius Meyers, and also the attorney of Henry Roos, Sr., but there is no specific testimony as to whom he professed to represent in making the statement to which Mr. Saunders refers. The only direct evidence, however, as to any interest of Julius Meyers in the contract out of which the case arises, is to the effect that he has, absolutely, no interest whatever.

The judge of the lower court held that the evidence did not justify the conclusion that Roos acted as the agent of Meyers, or that he was authorized to do so, and hence, that Meyers’ certificate, and his deposit, could not be considered as affected by the contract of July 31st. But he, also, held that said contract called for the $5,000.00, and that as Roos and his associates had failed to show Meyers’ authority they were bound, personally, and he gave judgment accordingly; and, from that judgment, Roos and his associates appealed. Upon the former hearing, in this court, the conclusion was reached that Roos had acted with the authority of Meyers, or in his behalf, and that the contract entitled the bank to the certificate, and there was judgment on that basis.

Opinion.

The fact that the defendants in this case are the brother-in-law, and the nephew, and nephews-in-law, of Julius Meyers, has very little significance for the purposes of the question which is to be decided; since it must be admitted, by any reasonable mind, that, whilst they might have been, and might now be, acting for Meyers, and with Meyers’ money, it is just as likely, as an abstract proposition, that they might have been, and might'now be, acting entirely for themselves, and with their own money. Seeking for information in other directions, we find that only two witnesses, Roos and Silverburg, testify directly upon the subject of Meyers’ supposed interest in the purchase of the bank’s claim and in the operations of the Mercantile Company, to which that claim was evidently transferred, and they both swear positively, that he had, and has, no interest in either.

If we, then, appeal to the surrounding circumstances, the theory that it is Meyers, acting through his family connections who is the real party in interest, is equally without support, for there is not a circumstance, disclosed by the evidence, which can be said to make that theory even probable, still less to sustain it.

Alphonse Levy, Meyers’ partner, took his own life, in February, 1896, and left the affairs of the firm, of which he was the acting, managing, partner, as well as of the bank, of which he was president, in a condition of the utmost confusion. It is hardly to be supposed, that if the money which he had obtained from the bank had been still in his possession, or in that of his firm, he would have been driven to such a desperate extremity, and there is no evidence in the record to indicate that the trouble which he sought to escape was not greater than he believed that he could endure. His sudden taking off, necessarily, left the burden on the shoulders of the partner, who survived, and it does not require a vivid imagination to enable one to understand that the position of that partner was not a pleasant one. It was his firm, carrying' his name, which had been wrecked and dishonered, and it was he who lived to be called to account, by wronged and indignant creditors, not only civilly, but in the criminal courts of the community in which he had been a prominent merchant and citizen. This present suit was instituted in February, 1897, about a year after the deplorable occurrence which has been mentioned, and the trial, in the District Oourt, took place some months later. Liquidators, representing creditors for over $100,000.00, had in the meanwhile been placed in charge of the affairs of the late firm, and it may readily be supposed that they had informed themselves fully concerning those affairs, and that the acts and doings of Julius Meyers had not escaped their attention. The president of the plaintiff bank has said, in his testimony, “I prosecuted Mr. Julius Meyers, prosecuted him criminally;” so that nothing of value, left in the Opelousas business of J. Meyers & co., was likely to have been overlooked; and, if the circumstances under which that business has since been carried on had been such as to indicate that it was conducted for the benefit of Julius Meyer, it seems probable that we should have heard of it through the transcript. But the facts shown are, that Julius Meyers has left Opelousas and is living in New Orleans; that other men have established, and are conducting, under the name of the “Opelousas Mercantile Company,” a business which has succeeded that of which he was the owner, and there is nothing- to indicate that they are not, financially, and otherwise, perfectly competent to conduct such a business for their own account, or that they are philantrophists, !who had rather devote their energies to working for an uncle, or uncle-in-law, than to the pushing of their own fortunes. When we proceed further, and reach the immediate facts with which we have to- deal, we find that, very soon after the condition of affairs was ascertained, negotiations of some kind were begun, looking to the purchase of the outstanding claims against J. Meyers & Co., and the only suggestion, which, in the remotest degree, connects Julius Meyers with those negotiations is, that Mr. Upton, who is mentioned in Mr. Saunders’ letter, is shown to have been Meyers’ attorney. But Mr. Upton was also the attorney of Mr. Henry Roos, Sr., Meyers’ brother-in-law, and it was Henry Roos, Sr., and his associates who were contemplating making the purchase. It was he who visited Opelousas and examined into the affairs of J. Meyers & Co. with that view, and it was lie, of whom Boagni wrote to the liquidators, saying, that he wanted to be informed of the results of his examination, and insisted that he should make something definite in the way of a proposition. And the proposition came — not from Julius Meyers, or from any one pretending to represent him, but from Roos and his associates, who were, dealt with, by the bank, as responsible men, acting for themselves. The contract was made in their name, and they paid the cash and gave the notes called for by it. And whatever ambiguity, in other respects, there may be in the language used, that language suggests no doubt as to who the contracting parties were.

Isaac Roos swears that he was not the agent of Meyers in the matter, and there is no witness who swears that he was, or who can point to any cricumstance, or combination of circumstances, leading to that conclusion. The provision of the contract, whereby the bank agreed not to hold J. Meyers & Company, or the members of that firm, on any indorsements owned by it, was simply part of the understanding, that the bank was selling all of its claim which made it certain that it was not to compete with its vendees in the discussion of the debtors’ property. But, suppose that Isaac Roos held Meyers’ full and unreserved power of attorney on the 31st of July, it surely will not be contended that he could dispose of, or did dispose of, $5,000 of his principal's money, by virtue of a carefully worded, written, contract, in which nothing of that kind is made to appear, but which, upon the contrary, declares in specific terms, that he is acting for himself and certain other named persons; and the consideration of which inures to him and to those persons, and not to Meyers.

In order, therefore, to justify a judgment which will appropriate the $5,000 in question, belonging to Meyers, for the purposes of the contract between the bank and Roos and company, we must first determine that Meyers is a party to, and beneficiary in, that contract, and then go a step farther and determine that, as between him and Roos and company, the $5,000 is his just, or his agreed, proportion of the price which they were paying the bank. And neither proposition is established by the evidence, nor can it be said that there is even an attempt to establish either of them. In addition to these considerations, it may be said that, if Julius Meyers had felt disposed to take up again the broken and tangled thread of his business life in Opelousas, there would seem to have been nothing to have prevented-him from making the offer, of 35 cents on the dollar, to his creditors, in his own name, if the theory of the plaintiff, that it was his money which was used, be correct. Why then should he have resorted to the complicated, and circuitous method which is attributed to him?

Proceeding further with the inquiry: If Julius Meyers was not one of the beneficiaries of the contract between the bank and Roos & Company, was it not perfectly apparent to the bank that his $5,000 could not be used for the purposes of that contract ? Is it not a difficult proposition to maintain, that the bank was deceived in this matter, and led into the belief that Roos & Company were turning over to it Meyers’ $5,000 deposit, when it is not even claimed that Roos & Co. were pretending to act by the authority of Meyers ? If there is anything of which the record is absolutely bare, it is both allegation and proof that Roos, acting for himself and associates, at any time, or to any body, asserted, or pretended, that he was also acting for Meyers. It is alleged that he was, in point of fact, Meyers’ agent, but, as we have seen, the proof fails to establish it; and it appears, affirmatively, upon the face of the contrac!) sued on, that it was not entered into by him in that capacity. But it is not even alleged, still less proved, that he claimed to be the agent of Meyers. On the contrary, the witnesses all agree that, during the time when the contract was being completed and signed, neither Meyers’ name, nor his deposit, nor his certificate of deposit, were mentioned. The bank, therefore, is in 'the position of holding in its possession, on deposit for the account of Julius Meyers, the sum of $5,000, for which its certificate is outstanding; and of claiming the ownership of said sum, by virtue of a contract made with some other parties, in their own names, and for their own benefit, upon the ground that such persons were the agents of Meyers, though it is not alleged that they acted as such in the making of the contract, and the contract itself shows the contrary; or, that contention failing, it claiims that such persons undertook, without pretending to be the agents of Meyers, to dispose of his money, and, being without authority, are personally liable.

If Roos had gone into the Opelousas bank to buy a draft on New' York for $5,000 and had offered, in payment, a deposit, then in the bank to the credit of Meyers, he would have been asked for his authority thus to make use of money belonging to another person, and if he failed to produce it the bank would have refused to furnish the draft. But we are told, in this case, that the bank gave value to Roos upon his undertaking to furnish the consideration in that way, and not only was he not asked for his authority, but the instrument in writing, by virtue of which he obtained the value, declared, upon its face, that he was giving and taking only upon his own account.

But, finally, did Roos and his associates undertake to dispose of Meyers’ $5,000 deposit, and did the bank do the incredible thing of parting with any value by reason of such an undertaking? We think that both of these questions must be answered in the negative. Whatever may have been the idea of the officers of the bank in substituting the word received for the word paid, in the correspondence with Saunders, that idea was never conveyed to him by the substitution, nor would it have been conveyed to any, except an uncommonly suspicious, mind. And the same thing may be said of the language of the contract. Roos had gone to Opelousas with a distinct understanding of the contract that he was to make, and the language written into it by the bank, after he reached there, was readily susceptible of an interpretation in accordance with that understanding; and he therefore signed the instrument.

The word received, as applied, in that instrument, to money which the bank had obtained from Meyers, is certainly susceptible of two meanings, and Roos was justified in supposing that it was used in the sense which made it applicable to the subject with which he was dealing, rather than to a matter, with which he was claiming no authority to deal, and with which the bank knew that he could not deal, without the express and disclosed authority of Meyers.

The subject of the contract was the claim of the bank against J. Meyers & Company, which the bank was to sell to Roos. But the bank had been “paid”, or had “received” $10,125 from the liquidators, and $5,000 from Meyers, on account of that claim, and it was part of the bargain, that the money so paid and received should not be refunded, and yet, that the bank should get 35 per cení, on its claim, as though no such payments had been made, and the words “money received from the liquidators, or from Julius Meyers”, were used to express that idea, and to protect the bank against being called on to refund the price of a thing which it would, otherwise, have appeared to be selling twice. There was no occasion to apply them to the $5,000 which Meyers had deposited, since that was a matter between Meyers and tho bank and in no manner affected the claim that Roos was buying. It occurred to Roos that, perhaps, the $8,044.61, which the liquidators of J. Meyers & Company had on 'deposit, might be involved, and he mentioned it, and had some words inserted in the contract respecting it. He was interested in doing so, just as he was interested in the provision to the effect that the bank should make no claim on 'the indorsements of J. Meyers & Company which it might hold; the only difference being, that, in the case of the money, if the liquidators retained it, they would use it to pay debts which would otherwise compete with the claim that he was buying; and, in the matter of the indorsements his agreement prevented them from competing with that claim.

It is true, no doubt, that 'the deposit was money which the bank had “received” from Julius Meyers, but it had. been received in reality as a sort of a loan, and had not been received in the relative sense in which that word was. used in the contract. It would be as reasonable to say of an agent who has been appointed to take charge of a particular business, and whose contract happens to provide that he shall account for, or deposit, all money received; that he should deposit a legacy received from the estate of his father, or money received, on his own account, from any other source, simply because it falls within the’ literalism of the word “received.”

We are, therefore, of opinion 'that the judgment appealed from is erroneous, in holding the defendants liable; and it is, accordingly, ordered, adjudged, and decreed that said judgment be annulled, avoided and reversed, in so far as it condemns Isaac Roos and his associates, and affirmed, in so far as it rejects the demand as against Julius Meyers.

And it is further ordered, adjudged and decreed that the demand herein made, as against Isaac Roos, Henry Roos, Sr., Henry Roos, Jr., Nathan E. Roos, and Isidore Silverberg, be rejected, and plaintiff’s suit be dismissed; plaintiff to pay all costs.

Nici-iolls, C. J., and Breaux, J., concur, for reasons assigned in separate opinions.

Watkins, J., and Blanchard, J., dissent, adhering to the original opinion.  