
    
      VILLERE' & AL. vs. BROGNIER, ante 326.
    East. District.
    
      December 1814.
    Former judgment confirmed.
    
      Duncan, Grymes and Martin, for the defendant.
    The plaintiffs claim the notes, which are the object of this suit, because they “deposited “ the same iff the hands of Michel de Armas, “ Notary Public, to be retained by him in deposit “till the (said) agreement should be carried into “ effect,- and they allege that the notes were ille- “ gaily taken by Brognier de Clouet from the office “ of Michel de Armas.” :
    The answer denies these facts, the plaintiffs must prove them.
    They, therefore, introduce the testimony of Michel de Armas. He does not prove the delivery of any note by the plaintiffs to be retained by him in deposit: but, that Soulié, one of the plaintiffs, delivered him “c part^ of. the promissory notes “drawn by the assignees (the plaintiffs) telling “ him that, after Cuvillier should have delivered “ him the other notes, after the judicial mortgage “ registered against Cuvillier and St, Amand “ should have been raised, as to St, Amand, after ‘ ‘ Brognier should have lodged into his hands the “ notes drawn by Cuvillier and endorsed by St. “Amand, and signed a certain act, he might “deliver him'the notes of the plaintiffs.” -
    If the agreement, mentioned in the petition, be not the one there detailed by Soulié, we have no evidence of any other ; we must believe no ^ther existed and the plaintiffs must fail.
    
      
      °^ier notes delivered by Cuvillier with the kiiowledge, and in pursuance, of, the agreement, so made by Soulié. -
    Jr the delivery made by Soulié and Cuvillier be not the delivery of which the petition makes mention, then, no other delivery of notes being proved, the plaintiffs must fail.
    If that be the delivery of which the plaintiffs speak, then they made the delivery of the notes which they claim, by the agency of Soulié and Cuvillier..
    If they sent Soulié and Cuvillier to deliver the notes to the notary, without ány written ins-. tructions, the notary was justifiable in receiving them, with such oral instructions as the agent gave and in pursuance of these instructions might validly "contract towards Brognier the obligation, of handing him over these * >tes, according to the directions of the plaintiffs’ agents.
    The notary having contracted this obligation, it was his bounden duty to comply therewith ; accordingly, as soon as the Conditions under which he was directed to hand over the notes to Brognier were accomplished, he discharged an obligation for the non observance of which damages might have been recovered from him. If he could not ; legally withhold the notes, Brognier’s receipt of them cannot bewailed, as it.is in the petition, an illegal act.
    
      But it is said there is no evidence of any power given bv the plaintiffs, or any of them, to bind then definitively: they had reserved- themselves the right of agreeing or disagreeing to what Souüé should do.
    The, defendant contends that the plaintiffs had given some authority over the notes. The possession implies this, when it does not appear tortious. The circumstance, of their being made payable to Brognier, is evidence that they were intended to come to his hands; for, in those of no other, could they be of any use. if the act of the agent has been incorrect thro’ misconduct or error, those who employed him must suffer therefore. If they recognize the delivery which Soulié and Cuviliier made of the notes to the notary, and desire to avail themselves of the rights it gives them on Brognier or the notary, they must allow th» correspondent rights which Brognier and the notary acquired from' the mode, the conditions of that deliver}'.
    The agent binds his principal, and the principal Is presumed to have contracted by the agent, .even when the agent exceeds his powers, provided that > what is done seems to be within these powers., Fothier, contrat de mandat, no. 89; Obligations^ ■ vbl. 1, no. 79. Now, in this case; Soulie’s power extending to the lodging of the notes in the hands, of de. Armas or Brognier, or to the using them for the purpose of relieving Cuviliier, it appeared^ to be within those powers to dictate, the purpose- ^or the delivery was made. If, in doing so, he exceeded his powers he bound his principal, at least the thing submitted to his controul. Po-thier, loco citato. The delivery, since it is recognized, must have been for some purpose ; he surely had some authority over the notes. He was surely empowered to make some contract or some arrangement therewith. If that contract or arrangement was, as the plaintiffs say, with a qualification, that the terms of it were to be Communicated to them and wait their ratification, this is a circumstance, which may give them an action against him, but which does not prevent The thing placed under his controul, the subject of his agency, from being engaged by the conditions under which he effected a bailment of it.
    If I send my clerk with my note payable to A. for one thousandtiollars to borrow money for one year and he agrees with A. on the tefms, and receives S 940 having allowed him, 6 per cent, I shall not he authorised to demand a rescission of the bargain on the ground that I wanted to have a gratuitous loan, or obtain money on a smaller discount, even if I prove that my clerk disregarded nay orders. The mission and possession of the note are presumptive evidence of an authority to dispose of the note ; if I allege I sent him only to make preparatory arrangements about the loan, shall I not be told that the delivery of the note repels the idea and presupposes that the note was to be used, in the only way it could be, viz. by , . , ' ' J • being delivered to the person to whose order it is made payable and to whom the messenger was sent therewith? I shall be bound by the act of my clerk, tho’ he has exceeded his powers; <because his act appeared to be, tho’ it was’not, within them.
    It suffices that what was done seemed to be, might be fairly believed to be, within the powers of the agent. Now, he who has power to make a a bailment, seems to, may be fairly believed to, have the power to declare the object of the bailment, and the terms on which it is made.
    In the present case, Soulié, being clearly authorised to make the bailment of the notes to de Armas, seemed to be, might fairly be believed to be, authorised to declare whether the notes were to be retained by de Armas, as is stated in the - petition, or to declare, as he has done, that on Brognier’s complying with certain conditions* they should be delivered to him. '
    He has done the latter, whether thro’ error or wilful departure from his principal’s instructions is immaterial to the immediate bailee, de Armas, or the subsequent one, Brognier. The notes must be disposed of according to Soulié’s directions and if any loss happen, it must be that of the plaintiffs, in cujus potestatem Jiiit legem apertius dicere. -
    But there is not any evidence that the plaintiffs Save Sonlié any other directions than those within which he has confined himself. The assertion, in the petition, that their intention was that the notes should be retained by de Armas* any agreement, than the one made by Soulié should be complied with, is entirely un? supported by any proof.
    Büt the Court says of this intention of the plaintiffs “there needs no other evidence than that “ each of them was ,to put his signature to the “contract.’*
    How does it appear that each of them was so to put his signature ? By the instrument which Soulié and Cuvillier directed de Armas to couch on his notarial register. Now if this act of Soulié and Cuvillier be the evidence'of any thing to be done by the plaintiffs, it must be because Soulié and Cuvillier were their agents ad hoc, that is to say, in defining the conditions on which Brognief was to have the notes. -Whatever may be the presumption arising from- the intended signatures of the appellee's in favor of their not being bound that is to say, losing their right on the notes tifl they signed, that presumption must yields to the positive evidence of the contrary, arising from the Stipulation that as soon as Brognier had fulfilled all his parts of the engagement the notary was to hand him the notes, without consulting any per* son, without waiting till they or any of them Signed.
    
      But, we are told that, admitting that the plaintitts were bound by the act of their agent they had aright-, which they have timely exercised, of dissolving their obligation. '
    Tée Court have informed us that it is a prin-feipie of our law, that “where it has been agreed “ that the contract should be reduced to writing, “ until it is actually Written and signed by all the “p arties any of them may receded It is trüé thisprinciple is broadly laid down in some elementary writers, but, if it be closely examined, wé shall find that it is confined to coñsential Contracts alone, and that this liberty of receding is neither of the essence nor of the nature of, but only an incident which may or may not attend, the contract. The party will not enjoy this liberty unless he has really stipulated for it.
    
      Febrero and Domat, in that part of their works cited
    by the Court, refer to L. contractus 17, Cod. jde fidie instr. Inst. tit. de contr. emp. Po~ thier, commenting on this part of the Civil Law, says : “Although the mere assent of the partied “ suffice for the perfection of consential contracts, “yet, if the parties, in a sale or hire or any other “ kind of bargain, agree to have an instrument “ respecting it made by a notary, with a view that “ the bargain bé nót concluded and perfect till “ the instrument shall have received its legal form “ by the signature of the parties and the notary, “ the-bargain will not be complete until -the nota-¶ instrument shall become so i and the par- ‘ ‘ tie», thu' they did perfectly agree to the terms of “tlie bargain, will be at liberty to.recant, at any' “ time pefore the notarial instrument is subscribe u e[]( But, if in this case the instrument is requisite “ for the perfection of the contract, which of itself “ requires nothing but the consent of die parties, ‘‘ it is because . the contracting parties have re-Squired it, and because it is lawful for the par-tf ties to a contract to render their, obligation dc-“pendent on what conditions they :please. | “ JPvthier on. Obi. no. 11.”
    Now, the author speaks of consentíala contracts only, not of real contracts which are performed by delivery, In this case, the contract on which she defendant claims and obtained the notes, that are the object of. this suit, is a contract in rem, a real contract of staking, a pledge. Soulié and CuviJlier,,wbo had been entrusted by the appellees And others with notes to the amount of S 22000, or thereabouts, in order to obtain, by means of these notes, the release of ah impending mortgage on St. Amand’s lands arid relief from Brognierh» suit, deposited the said notes with a notary, there to remain as a stake or pledge in favour of the defendant and to be delivered to him upon his compliance with three conditions, to wit the surrender of Cuvillier’s notes, the release of St. ^.maud’s mortgage and his signing a deed of transfer pf his rights on Cuvjllier, to the makers of fhe Rotes. Tais- «tás a- real contract f\- P&thief m Obligations no. iO^andas such was not subject to the liberty oí' receding,, which may fee Stipulated for in consential contracts, but which, evettkt t&dse, does not occur, without an express or tacit provision therefore. It is -an executed, not M executory,, contract on the- part of the perSort depositing» By placing the thing in the bauds1 of a* third person, he discharges himself of every1 obligation, arising from the contract ;• and the rights of the party he contracts with cart Only bé enforced against the stake-holder or third person. This principle is recognized, in the ease' of Williams vs. Cabarrus, determined in the Superior Court of North Carolina⅜ Martin's notes 29. Thd plaintiff having made a race with one Dekey ser,-each party deposited the sum bet in the hands of the defendant and the Court held1 that “an action “ vveli lay against the stake-holder,' by the party* “that won the race, and none would be against. “ the losing; party : because he had complied* with “ that article of the agreement which obliged* hint» “ to pay, -staking the. money with the defendant.’* Apply this principle to this case, Soulie and Cuvillier executed the agreement made with Desse, in behalf of the defendant, by depositing the notes in de Armas’ hands : Brcignier (thro*' Desse) complied with; part, of 1⅛; by* depositing Cuvillier’g..notes- and releasing the mortgage and tfeere remained, nofoingto-be perfotfme&but sigtiihgi the deed Of transfer* As there was no time fixed for doing this, the defendant could not be com.'. plained of, for not doing it, unless he was put m mora .-he never was, neither conldhe: he executed tjie cjeecj within a very short interval after the com. pletion of the notes,to the amount of S 23000.
    It is true no contract intervened between the plaintiffs and the defendant i none is pretended to, have intervened. If a suit can be supported by them against the defendant, it must be founded not one contract, but upon a tort. That tort is supposed to be the wrongful taking of the notes by. the defendant. Now, the character of this taking must establish the right of either the. plain, tiffs or defendant' to these notes. It is not denied: that the latter took the notes, after complying with all the conditions upon which according to the agreement between him and the plaintiffs’ agent they were to become his.
   The Court,

however, is pleased to consider-our right, if any exist, as arising on a contract of Sale of our claim on Cuvillier, of which the notes ©f the plaintiffs, were the price,

He$S-, weadra.it the pbwer of receding exists, if really the intention of the parties was that the perfection of the contract should depend from the Notarial apt. Otherwise, it has been shewn this, power does not exist. Now, we contend there is po evidence of any such, intention. JEv.en, if there was, still the faculty of receding ceased, from the moment the rights of the defendant on St. Amand were released. The thing was no , . . . longer entire and the plamtms could not recede without doing a material injury to the defendant. This the law iorbids. '

“The contract of annuity,’’says Pothkr,“ not feeing perfect, as long as the money, which is the price of the annuity remains with the' nritary, it follows that he, who has furnished it, may alter his mind and resume it, as long as the thing ⅛ entire, and the party, who Sells the annuity receives thereby no prejudice. He who resumes his cash is bound, in this case, to nothing else, but the payment of the charges or fees of the notary or to reimburse them , to the other party, if he has paid them. -

“But if the thing be nq longer entire, 'for example, if you have granted me jan annuity, either by a notarial act, or one under your private signature, of one hundred pistoles a year, for the price of twenty thousand livres, which you promised to invest in a tract of land 3-011 were bargaining for, and I deposited the money in the hands of a third person, until this purchase was completed : altho’. the money be not yet paid, and consequently the contract of annuity has not received its perfection, yet, if you have already bargained for the land, I shall' be bound to. de. liver you the money, in order to enable you to

Pay f°r the land. This obligation does n«>t aeisfc properly out of the incipient, contract* which intervened between us : as it did not mature: , into a periect contract* it cannot; per se produce. (Jj;>]j^a^Gn> Mine arises from this rule of natural equity, nemo potest mutate consilium' m oIterius ' injuriam. X 76,. , § ⅛ Reg. J. Altho’ die contract,, which intervened between us„ has not yet received its perfection,, yet,.as I Liaver iuduced you to bargairt for the land,, equity forbid» I should disable you from complying with it* by withholding the money, on which I induced you, to rely,

“Likewise,, if,, where I altered my mind, and resumed my money, you had made no bargain, but have been, at some ex pence towards, one, I shall be bound to indemnify you.” Con-trátele Rente 76, 74, ño. 65.

A more parallel case could not be adduced. Wlnt— ever might have been the plaintiffs’ right of receding frdm their contract, after tlie defendant had, foregone his claim on ⅜. Amand’s property, the: plaintiffs could not without indemnifying him,, refuse, to, carry, their’ bargain into full effect.

, SfrakiNg of the sacrifice, thus made by the; release of St. Amaral, die Court asks, ante 351, , V why was he. Desse or Brognier, so forward ⅛ 4‘executing what was not yet an obligation oa,- “ lúa part ?⅛ O.ur answer is in the statement. aB fecits, ants 332, '“CuviUkT and Smilié pressed the “mease and it was executed, on the assurance that 4‘Soulié gave, the matter was concluded and “payment was secured by the deposit pf the “ notes.” We may emphatically say because the plaintiffs pressed us. For we have shewn Soulié was their agent. Yet, the judgment deprives us of the very note of Soulié him seif, which lie thus induced us to consider as part of the security, on which he solicited us to part with, our right. The Court may say, in spite of the law produced, that he was not the plaintiffs’ agent and could not bind them : but considerable ingenuity roust be exercised, before, we do not say a good, v, but plausible ground may be shewn' them, on which the Court may say that his note was not virtually pledged, and ought to be restored.

The Court, in their j udgmenterroneously charge Brogmer with having “refused to sign the act as '“•it was and signifying his intention to have the “ clause inserted.”

Brogstie» never did refuse to sign the act as it was, or to sign it in any manner. He neversignn fn d any intenlim to have any clause inserted. The party of the statement on record which corresponds with this part of that of the Court is to be found i,n the deposition of de Armas. See his depósi-|jon, ante 337, 338 and 339. ..

Li i the Court observe that Brognier did not* ¡even g-ive the reference the Countenance of his * . signature or parciphe, without which the Court knows such a reference was a ntillity ; with-it,- it wousl have bound Brogmer but no one else. ''' ,

The defendant has to complain that, while the Court casts an unfavourable shade on his conduct* unjustified by any thing in the record,^ it throws a iavoii rabie gloss on that of the appellees which is alike uncountenanced bv any thing in the record.

The Court attributes the recantation of three of the assignees to the information, which it says was given them of Brognier’s refusal to sign. “On discovering this alteration (the reference in “the margin) and being informed of Brognier's refusal to sign, three, of the lour who had signed “it, blotted out their signatures.”

i v no part of the record, is it stated that Bro. gnier refused to sign, or that any person was informed of this pretended refusal. Bianque gives his reasons : he does not 'pretend that Brognier revised, to sign, he only says that “he was master “■../'his signature as long as the other party had f‘ he ■ signed.' Clarke gave no reason : Soulié dis-p;r only, ‘‘on his right to do what Clarke and Eknquc had done.”

Let the Court correct their own statement by the'record in these particulars and then ask them* selves what part of it authorises them to say “that Brognier by his recantation released the other “ parties from their engagement ?” Or that he either made or caused to be made any ‘•‘"alteration" or uchange" in the act? No change or alteration tvas made in the act: a reference dr apostille was inserted in the margin and the Court cannot be ignorant that this wrought no effect on the act, could have none till “paraphed” or signed by the notary and. the parties. 1 Ferriere Diet. Verbo Apostille.

The Court views the reserve of a mortgage on Cuvillier’s estate, for such part of the notes as might not be paid, as at war with the spirit and the letter of the whole transaction. If I sell my land on credit, is a stipulations that in case of non payment the sale shall be rescinded, incongruous ? Does not the law supply such a clause ? If the law could supply it for the whole, may it not be stipulated for a part ? ■

Th e Court sees no evidence of this stipulation. Desse swears, that Cuvillier proposed it, as ope of the conditions of the transfer, and' Soulié told him he might consider the matter as concluded, ante 331. It is true, he informs us, on his cross-examination, that the terms were not discussed with Soulié : they had been with Cuvillier.

The release, granted to St. Amand,ds considered by the Court, as a departure from the c0il®ac*> by which Brognier engaged to transfer his claim to the plaintiffs. He engaged to trails* ferhis claim against Cuvillier, and his mortgage on the land sold the latter and nothing else. See plaintiffs’ petition, ante 328. That St. Amand, Cuvillier’s father in law, was tobe relieved, clearly appears, from Desse’s deposition, from Soulié’s declaration to the notary, from Cuvillier’s conduct, who gathered and deposited part of the notes, with the knowledge that the release was one of the conditions, on the performance of which they Were to be handed over.

The petition states that the appellees severally agreed, to furnish their notes : there is nothing -from which a joint contract could bé implied and the right of every appellee must be examined distinctly and a part from the others ; surely that of Sou lié cannot in any point of view be recognis* ed by the Court : he stipulated certainly for him* self and he must be bound at all events.

If it were admitted that Blanque and Clarke, the other individuals who blotted out their names, did actually recede and had a right to do so, does it follow

Th at Villeré, who never expressed any dissa* fisfaetion or intention to complain, till long after Brognier had taken the notes, has any right to claim his ? Brognier transferred him his rights: he had accepted the transfer previously, and never appears tabavd receded.

Marigny certainly cannot avail himself of Brognier having proposed a change in the deed, tyhen he has answered it did not appear to him it Could make the least difficulty.

What evidence of the dissent of the others was there at the time Brognier subscribed the. act?

By the Court. The Court, on the rehearing of this case, has given due attention to the arguments by which the counsel for the appellant endeavoured to support their objections to the judgment. ' .

The first ground on which they relied was, that J. Soulié,-one of the appellees, if not expressly authorised to stipulate for his co-subscribers, was impliedly so. The only circumstance, however, from which such implied power could be deduced, is that Soulié was entrusted by some of the subscribers with their notes, which were to be the consideration or price to be paid to the appellant Brognier, on his complying with • his part of the contract. But this Court is of opinion that, should Soulié have been the bearer .of all the notes, instead of some of them, yet ⅛ would noMrom thence follow that he was autho-rised to deliver them up, before the parties had finally agreed to the conditions of the contemplated contract; because nothing would have a more <^anSeroius tendency, than this doctrine of implied authorisation and because the right of acting for, others and disposing of their property cannot be assumed, without an express and determinate power.

The second objection of the appellants to the, judgment of the Court is that the Court have overlooked several important matters of fact and particularly the stipulation, made by §oulie, that the notes' by him deposited in the hands of the notary should remain there, as a surety for the amount of the judicial mortgage afterwards released by Desse. On this point it did not, nor does it now, appear to the Court that the appellees had at all contemplated that the release of the judgment obtained against St, Amant should be one of the conditions of the intended contract, but on the contrary, it is, evident from the instrument drawn by the notary to which some of the appel-lees had affixed their signatures,, that the very reverse was the understanding of the parties ; for in that instrument, drafted conformably to the memorandum delivered by Cuviliier to, that offi--cer, it is positively expressed that upon one of the notes transferred by the appellant judgment had been obtained and execution issued, against Cuviliier and St. Amant.

The danger of the doctrine of implied autho-risation above spoken of is here made manifest ; ibr the consent Niven by Soulié to the release ⅛ J . of this judgment and execution in favor of St. Amand is at war with the conditions as reduced to writing and as recognised by some of the ap-pellees. The Court, therefore, think that if the appellant Brognier suffers any prejudice in consequence of the release of the judgment obtained so by Desse against St. Amand, he has not to oomplam of any of the appellees, but Soulié.

The appellant next observes that the clause, added in the margin of the notarial instrument* to wit, a reservation of Brognier’s mortgage on Cuvillier’s property, for so much of the notes as should happen not -to be paid, was not an after thought, but made from the beginning a part of the stipulations agreed upon between Brognier’s agent and J. Soulié. The' Court have bestowed particular attention on the two depositions of that agent, the only witness who pretends to recollect any thing of that stipulation, and have found them so contradictory that they cannot give them much faith. In the first deposition, which is a recital, at one breath, of the whole transaction, he says indeed that after having treated with Cuvillier for. the conditions of that contract, mentioning among others the reservation of mortgage, he had some conversation on the subject with1 Soulié who told him he might consider the business as. concluded on the conditions above mentioned ; ^ut: on ^e’n^ asked particularly whether he had discussed with Soulié the conditions of the con* tract, he answers categorically that he did not, Whatever sense may be attached by the appellants tQ tj^e word discussed, as employed in this case, it conveys to the mind of the Court the idea that Desse1 there confesses not to ,have entered into any minute explanation with Soulié, as to the particular stipulations of the contract* And when it is considered that he afterwards went with Cuvillier to the notary’s office, that there Cuvil-lier delivered to the notary the draught from which he was to make the instrument; and that neither in that draught nor in the instrument itself is to be found the clause of the reservation of mortgage, it may well be inferred that this clause was an after-thought, not perhaps as between Brognier and his agent, but as between Brognier and Desse and; Soulié. Indeed Desse himself on being asked, whether Brognier had not signified his intention to have a clause added in the margin of the instrument, plainly answers, that Brognier not considering his rights sufficiently secured in that instrument proposed to add a new clause to it. Supposing,, however, this clause to have been previously agreed upon between Desse and Soulié, the question recurs how does it appears that Soulié was authorised to consent to such reservation ? Is it not on the contrary very evident that the appellees under* stood very differently, when we see the instrument prepared by the notary and signed by some of them containing an absolute and unconditional __ . transfer of Brogmer’s rights and mortgage on „ .... , ¾ C.uvmíer s property r

Finally, the appellant represents that although the principle of law be that where the parties have agreed to have the instrument of their contract reduced to writing before a notary, they have a right to recant before the instrument is closed and signed, yet that principle has its limitations, and that the present case is not one of those *© which it be may applied. In order to shew this, they have endeavoured to assimilate this to a real contract and pretended that in cases of real contracts the delivery of the thing makes the contract complete, so that the right of the parties to recant before signature is not applicable to contracts of this kind, but only to. contract called consensual, where nothing else than the consent of the parties is requisite to make them perfect. It would be idle here to examine whether the distinction insisted upon by the appellant be or be not correct, for the contract in the present case is a simple consensual contract, a naked contract of sale, in which the rights ofBrognier against Cu-villier are the thing gold, and the notes of the appellees and others are the price. It. instead of their notes, the appellees had deposited, in the hands notary* the money which was to be the price of the thing brought* would the vfendor have had any riarht to take it, before , the act should have - ° . been closed and made complete by the signatures ajj the parlies ? Surely not and where is the difference ? The Court has not been able to discover any,

UpoN the whole, the Court is satisfied that the judgment rendered in this case, as it relates to the appellant Brognier, is founded in law and justice: but in as much as it appears that some of the notes claimed here, have been negotiated in good faith and have become the property of third persons, the Court think it necessary to modify their decree so as to relieve the other appellants from any responsibility. ,

It is, therefore, adjudged and decreed, that the /appellant Brognier do restore to the appellees the several notes by them subscribed in his favour, or, the amount of such of the said notes as it will not be in his power to surrender.

The City of Ñew-Orleans being besieged by a British army on the first Monday of January, J8L5, the Court was not opened.  