
    Daniel Treadwell Walden v. Henry Parrish.
    Defendants sold to a third person, who occupied .a building leased from plaintiff, certain boxes of merchandize, for the price of which the purchaser gave his note payable thirty days after date. The merchandize was delivered to the purchaser, and placed in his shop in the building leased from plaintiff. Two or three days after the sale, the purchaser absconded; but, on the eve of his departure, wrote to a third person to deliver the merchandize to defendant, and to get back the note given for the price. Defendant took the merchandize from the store of the purchaser and gave up his note, and resold the merchandize. In an action by the landlord against defendant to recover the value of the merchandize thus removed from the premises: Held, that the parties were in a condition to rescind the previous sale, and that defendant was not liable to plaintiff for the value of the merchandize.
    Appeal from the District Court of the First Distrct, Buchanan, J. The petition alleged,.that one Caldwell leased from the plaintiff two stores connected with each other, one for the annual rent of $1200, and the other for $800, the rent payable monthly. That Caldwell being in debt to the petitioner for rent in arrear and otherwise involved, did, within the preceding fourteen days, abscond. That after he had abandoned the premises, the defendant, in violation of plaintiff’s privilege as lessor, illegally and without his consent, did, within the preceding fourteen days, remove from the premises ten boxes of manufactured tobacco, weighing about 35 pounds each, and worth at least thirty cents per pound, and that he has since disposed of the tobacco so as to place it beyond the reach of the plaintiff. The petition prays, that defendant may be compelled to restore the tobacco, or to pay the value thereof, &c. The defendant answered by a general denial.
    The defendant, in answer to interrogatories propounded by the plaintiff, stated, that he sold ten boxes of manufactured tobacco to Caldwell, on the 5th of February, for the price of which he took Caldwell’s note, at thirty days, but without granting Caldwell any discharge from the debt by taking said note ; that the boxes weighed each 148Tfy pounds; that the tobacco was sold for 30 cents the pound, and the note was for $444 90; that on Monday, the 9th of February, he removed nine boxes of the said tobacco, and two three-quarter boxes of a different brand, from Caldwell’s store, after purchasing the same from Caldwell, and returning to him his note in payment therefor ; that he resold all the tobacco before the commencement of this suit, the nine boxes at 30 cents per pound, one of the three-quarter boxes at 12|- cents and the other at 16 cents per pound, being an inferior article ; that Caldwell’s store was closed when he went to it for the purpose of removing said articles, which was during the ordinary business hours when such stores are usually open ; that he had no reason to suspect that Caldwell had left, or was concealed for the pur-, pose of secretly leaving the city, at the time of visiting his store ; that on the morning of the 9th, Caldwell’s clerk came to his counting-room, and stated to him, that Caldwell wished him to take back the tobacco, and give up the note given for the price ; and that Caldwell wished him to go to his store and receive the tobacco, and hand over the note at the same time; that he (defendant) went to Caldwell’s store, where he found the clerk, who pointed out to him one Conway who would deliver the tobacco and receive the note; that Conway, who had the key of the store, unlocked it, and delivered the tobacco, and received the note ; and that Caldwell had solemnly pledged himself to protest said note, so that he should lose nothing by giving him the credit.
    Conway, examined by the plaintiff, stated, that he kept a store in the next house but one to that occupied by Caldwell; that he saw Caldwell for the last time on Sunday morning, between seven and nine o’clock ; that he never saw Caldwell’s store open after that morning; that his store was usually opened every morning by half past six or seven o’clock ; that the key of Caldwell’s store was handed to him by a young man whom he did not know ; that when the key was delivered to him he was directed to deliver the tobacco to defendant; that defendant took the key from him and went into the store, which was kept open for twenty minutes, or less ; that he saw nothing taken from the store by defendant but the tobacco, which was removed on Monday morning about breakfast time ; the young man, as witness understood, had been living at the same boarding house with Caldwell; the key was sent to plaintiff after the tobacco had been removed.
    
      Folsom, examined by plaintiff, stated, that he' kept a store next door to Caldwell’s ; that the last time he saw Caldwell was on the1 Saturday preceding the removal of the tobacco ; that he did not see Caldwell’s store open after that day, except when Parrish removed the tobacco ; that at the time of removing the tobacco, he heard several persons say, that Caldwell had run away; thinks he had heard that Caldwell had run off, before defendant took the tobacco away.
    
      Haskell, examined by plaintiff, stated, that he lived next door to Caldwell’s store, and that he saw Caldwell, for the last time, on the Saturday preceding the removal of the tobacco.
    
      Smith, a clerk of defendant’s, examined by plaintiff, deposed, that he heard Parrish say, that Caldwell had gone off when he went after his tobacco ; believes that Parrish was in a hurry to get the tobacco back into his possession.
    
      Louisa Newton, a witness for the plaintiff, stated, that Caldwell boarded at her house until the morning of Sunday, the 8th of February, when he left after breakfast, without settling his account, and that she has not seen, nor heard of him since.
    White, another witness for plaintiff, stated, that on Monday, the 9th of February, between eleven and twelve o’clock, he received a letter written and signed by Caldwell, which was offered in evidence. So much of the letter as is of any importance, is transcribed :
    “ New Orleans, Saturday, 7th Feb. 1840.
    “ Mr. John N. White,
    “ Sir : I am sorry to have to trouble you on such a disgraceful communication, but it cannot be helped at this time. I have met with some losses and disappointments, and my neabour Lea & Co. closing doores has put a shock on me. I have sent my man Barron to Galveston with a small lot of goods on speculation, and fearing he would, not return quick, my creditors would put me in the calaboce and not give me a fair chance to get clear, I have made my mind up to gow up the river as far as Nacatoch, and cross over to Texas. You will please attend the store, and see what I do ow. I have all the bills and receipts with me. My intentions is not to defraud any person; they shall be paid. I will be able to pay all as it comes due except Mr. Bagley for sugar, and Mess. Yarian, and Ogden & Southgate. * * * I have told one or two I was going home, but you got the whole trouth. Tell Mr. Parrish on Poydress street, to take his tobacco back. I bought ten boxes, at 30 days, at 30 cents. He holds my note for the same: get my note back. He can claim the tobacco ) it bears his mark, Richmond. * * * * But.if my creditors is gentlemen, and will not go to extremes with me, I will be in Orleans in thirty or forty days, and pay all I ow ; the whole is not more than $3000 — say $2400, with rent. Please see them all for me. No more, but your troubled friend,
    “John Caldwell.”
    - On the back of this letter, under the direction, was written : “ This letter will give all inquiring friends information abot the subscriber in heast, J. Caldwell.”
    Plaintiff offered in evidence the record of an action in the Commercial Court, from which it appears, that on the 14th of February, plaintiff as Caldwell’s lessor, obtained an order for the provisional seizure of the property in his stores, and of the leases thereof, and that a judgment was subsequently rendered in favor of the plaintiff against Caldwell for $1862 24, and ordering the property provisionally seized to be sold to satisfy the same. The return of the Sheriff showed that the nett proceeds of the sale amounted to but $310 88.
    No evidence was introduced on the part of the defendant.
    The court below rendered the following judgment: “ Considering that articles 2294, and 2679 of the Civil Code are inapplicable to this case ; and further considering that the plaintiff has shown no cause of action : It is adjudged and decreed, that there be judgment for the defendant, with costs.” The plaintiff appealed.
    
      M. M. Robinson, for the appellant.
    
      Peyton and 1. W. Smith, for the defendant.
   Garland, J.

The plaintiff claims of the defendant ten boxes of manufactured tobacco, weighing each 148 lbs., or the value of them at 30 cents per pound, on which he alleges that he has the privilege of the lessor. The facts are, that in the autumn of the year 1839, the plaintiff leased to John Caldwell & Co., a store in New Orleans, at the rate of $100 per month. Caldwell & Co. occupied it until about the 8th of February, 1840, when Caldwell, the resident partner, disappeared without paying the rent, and has not since been heard of. On or about the 5th of February, the defendant sold Caldwell & Co. the ten boxes of tobacco, on a credit of 30 days, and took a note for $444 90. When Caldwell was about to leave, he wrote a letter to one of his friends, in which he says: “ Tell Mr. Parrish on Poydras street, to take his tobacco back. I bought ten boxes, at thirty days, at 30 cents. He holds my note for the same. Get my note back. He can claim the tobacco, as it bears his mark.” On the 10th of February, when the defendant was informed of the proposition of Caldwell, he agreed to take back the tobacco, and give up the note, and went to Caldwell’s agent for the purpose of getting the tobacco and giving up the note ; and the arrangement was carried into execution by the delivery of the note to Conway, and of nine of the boxes of tobacco sold by the defendant Parrish to Caldwell & Co.; but as one box had been sold, the defendant took two three-quarter boxes of tobacco of an inferior quality, upon which he had no claim, in place of the one sold by Caldwell.

Upon these facts the Judge of the District Court gave a judgment in favor of the defendant, relying on articles 2294 and 2679 of the Civil Code.

So far as the judgment relates to the nine boxes of tobacco, we think the inferior court did not err, as, at the time the contract took place, we think the parties were in a situation to rescind the previous sale j at any rate, that Caldwell was competent to sell the property, when he authorized White to make the proposition to the defendant. The latter had the privilege of the vendor on the tobacco; and we think the case comes fairly within the meaning of the articles of the Code cited in the judgment.

But as relates to the two three-quarter boxes of tobacco, the case is different. Caldwell did not propose to sell them to the defendant, nor to authorize White or Conway to sell or deliver them to him. He, therefore, had no right to take these two boxes of tobacco, and must account for them ; but as the record does not show how much these boxes weighed, although the value per pound is stated, we are compelled to remand the case to ascertain how much the defendant must account for.

The judgment of the District Court is, therefore, affirmed, so far as it relates to the nine boxes of tobacco sold and delivered by Caldwell’s agent to the defendant; but so far as it relates to the two three-quarter boxes of tobacco, the judgment is reversed, and the case remanded for a new trial, to ascertain its value. The costs of the appeal to be paid by the appellee.  