
    No. 11,867.
    Erman & Cahn vs. Theo. Lehman.
    The privilege resulting from a seizure or attachment is subordinate to privileges legally existing upon, the articles seized at the time of their seizure.
    Where a party claiming to act as the authorized agent of an Ohio firm undertakes in Louisiana to enter into, and does enter into an absolute present contract of sale for a certain number of goods of a particular kind and description fora fix* d price on credit, and there being no goods of the firm of that kind in Louisiana at that time the party acting for ti»e firhi notifies it of the sale and instructs it to ship and deliver the goods to the purchaser under the contract, and the same has been done accordingly, the firm is entitled to a vendor’s privilege to secure the payment of the unpaid price as resulting from a Louisiana contract.
    The fact that the firm, in order to execute the contract, has in Ohio to select out of a larger number of the designated articles, certain special articles to bring them directly under the operation of the contract, or that it could have repudiated the contract, does not affect the question The firm having affirmed the contract made on its behalf, the affirmance would give to the contract all the force of an origin «1 authority in the agent to have so.ld at the time, in the place, and in the manner he did. The affirmance being of a sale made by an agent as in presentí and as an absolute sale it would stand affirmed as made with its character so fixed by the parties to it. There would be either no sale at all, or one as made. Omnis ratihabitio retrohcefoir et mandato cequi paratur.
    
    The decision in McLane vs. His Creditors, 47 An. 135, reaffirmed.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Ellis, J.
    
    
      Lazarus, Moore & Luce for Plaintiffs, Appellants.
    
      W. S. Benedict for Elias Block & Sons; Bernard Titche for Lachman & Jacobi; Buck, Walshe & Buck for Mehaloviteh, Fletcher & Co., and Old 76 Distilling Company; Frank L. Richardson for Heitman Bros, and R. Monie & Bro., for Opponents in Rule, Appellees.
    Argued and submitted November 21, 1895.
    Opinion handed down December 2, 1895.
    
      Various attachments were taken against the defendant, Theodore Lehman, under which his stock of merchandise, liquor, etc., were seized by the civil sheriff. The attachments of Erman & Oahn and A. Erman were prosecuted to judgment and the privilege resulting from their attachment was recognized. The stock was sold, and out of the proceeds the first attaching creditor was paid the amount of his judgment. The present contest is over the remainder of the proceeds, plaintiffs, Erman et als., as attaching creditors, claiming to be paid by reason of their privilege, while other parties claim to be paid by preference over them out of the proceeds of sale of different articles upon which they claim vendors’ privilege.
    Each of these last named parties pointed out the property on which they claimed a privilege before the sale was made. Separate appraisements and sales were made, and the sheriff kept the proceeds of the different lots, thus pointed out, separate and distinct.
    After the sale the sheriff filed in court an account in which, after presenting the disbursements claimed to have been made and the costs, and pro-rating them among the various parties, he prepared a proposed distribution of the funds according to the rights of parties as he understood them to be, and ruled all parties into court to show cause why the distribution should not be made in accordance therewith. The parties to this rule were the plaintiffs, Erman & Oahn, Mehalovieh, Fletcher & Co., The Old 76 Distilling Company, Lachman & Jacobi Company, Elias Block & Son, Heitman Bros., and Monie Bros.
    By the sheriff’s tableau he proposed to pay over to each of the parties claiming vendor’s privilege the net proceeds arising from the sale of the article on which the privilege was asserted.
    Erman & Oahn, plaintiffs in. the original suit, opposed the sheriff’s tableau of distribution and the payment he proposed to make to the parties mentioned above for the reason:
    1. That none of the said parties have any valid claim of indebtedness against the defendant.
    2. That if they have any valid claim, they have no lien, privilege or rights whatever on the proceeds of the sales accounted for by the sheriff, the contracts for the sale of the merchandise sold by them to defendant not being Louisiana contracts but having been made, entered into and consummated out of the State of Louisiana in States where the common law prevails.
    
      3. That the goods sold, the proceeds of which were accounted for by the sheriff, have not been identified by the parties as being the goods alleged to have been sold by them to defendant, and are, in truth and fact, not the goods so sold and unpaid for as claimed.
    4. That in any and all events, opponents being domestic and attaching creditors, with attachments priming all the sequestrations which the said parties obtained against defendant, and by virtue also of their writ of fl. fa., under which the proceeds were held by thp sheriff, and of their lien and privilege resulting from the seizures under attachment and fl. fa., are entitled to be paid by privilege, preference and priority over and before any of the said parties, or any other creditors of the defendant out of the proceeds.
    On the trial of the rule the District Oourt dismissed the opposition of Erman & Oahn, approved and homologated the sheriff’s account and tableau, and ordered the funds to be distributed in conformity therewith.
    Erman & Oahn appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

We find in the record the following admission:

“ It is admitted, and in which admission all parties interested join, that the sheriff’s statement annexed to the rule herein, is correct as to his charges as to the sum total of sales, and as to the proceeds, as specified of the property pointed out by the various parties, as subject to their respective rights of sequestration under which they assert their privilege; the question of rank and privilege to be determined by the evidence now to be taken.”

The first proposition which we will notice is that last advanced in plaintiff’s brief: “that, in any and all events, they have a priority and preference of payment out of the proceeds of the property sold by the sheriff in this case, by reason of the privilege which they obtained under their attachment and their fi. fa.”

The parties whose claims to privileges superior to that of the plaintiffs, have been recognized, by the District Oourt, do not rest their right upon their, sequestrations, but upon the fact that they are unpaid vendors of the various lots of articles which have been sold, and upon the proceeds of which they claim a privilege. It has been repeatedly decided that the. privilege resulting from an attachment or seizure is subordinated to privileges legally existing upon the property seized at tbe time of the attachment or seizure.

The real contention of the appellant (one common to the case of all the appellees) is that the court erred in applying the rule of law announced in McLane vs. His Creditors, 47 An. 135, to the contracts which are involved in this litigation. They maintain that the facts bearing upon them bring them relatively to the existence of a privilege under the decision in Claflin vs. Mayer, 41 An. 1048, “ that the contracts were not Louisiana contracts, but were made, entered into and consummated in States where the common law prevails.”

The syllabus in the Claflin case reads as follows:

“Where an agent in New Orleans for non-resident dealers has authority only to exhibit samples and receive orders, which he communicates to his principal for acceptance or rejection; held, that an order so transmitted was similar in every respect to an order to purchase sent direct by the buyer to the seller, and when accepted and filled and the goods delivered to the carrier and insured by the buyer, that it was a contract where said order was accepted and filled and the goods delivered.”

In the body of the opinion the court, referring to the parties who represented the vendors in Louisiana, said: “The agent’s authority here was limited and restricted. He could not bind his principal, and his sole duty was to exhibit the samples, receive and forward orders for goods.”

We find in the cases at bar an entirely different state of facts. The authority of the parties who represented the vendors here was not limited and restricted to exhibiting samples and receiving and forwarding orders for goods for acceptance. On the contrary, when the interviews between Theo. Lehman and these various parties erminated, the situation was not that of parties waiting to see whether or not propositions for purchases, which were to be sent forward, would be accepted or not by principals residing in other States and depending upon the action of those persons in order to determine whether contracts would be made or not, but of parties who had then and there made completed contracts of sale, the one as a purchaser, the other claiming to be authorized by their principals to make presently concluded sales, and so making them.

There was no misunderstanding between the parties as to the attiude in which they respectively stood. Lehman did not deal with the representatives of the foreign houses as solicitors for those houses forwarding orders for acceptance or rejection, but as agents of those houses, making present sales for them and forwarding orders not for acceptance or rejection, but in execution of concluded sales. The orders sent forward were sent forward solely because the articles which were the object of the sales were in other States and required shipment. Had they been in New Orleans at the time of the interviews, delivery could have been called for there at once by Lehman. Under the evidence in the record there would have been no necessity for any communication between the different agents and their principals to justify the former in making a delivery.

In the McLane case the organ of the court in referring to the authority of Ruffin, who represented the Curtis & Co. Manufacturing Company in Louisiana, said: ‘‘It is admitted that Ruffin, who represented the Curtis Co., had full authority to bind it by any contract of sale which he might make, without referring his action to Missouri for its approval or ratification;” but the language used by him did not have the significance which opponent’s counsel attach to it, as evidenced by the character of their cross-examination of witnesses in this case in relation to the powers of the different agents. Ruffin’s powers were merely incidentally mentioned, as they were not the subject of contest or discussion, and allusions to them were more loosely worded than they should have been. In the case now before the court, the different agents did not assume the position of “ drummers” or “ solicitors;” they took upon themselves the position of agents of the vendors, with full, present authority to sell absolutely and at once, and they were so dealt with by Lehman. We think they had ample authority to act as they did in making the sales; but were we to assume that they had transcended their authority or disobeyed secret instructions in so doing, it would by no means follow, when their principals (called on to take action in respect to their New Orleans dealings) should affirm them, that the contracts are to be taken as contracts of the place of residence of the principals. On the contrary, the act of affirmance being of a sale made by the agent as one in presentí, the act would stand affirmed as made with its character as fixed by the parties to it when made.

The ratification would give to the act all the force of an origina authority ifi the agents to have sold at the time and id the manner and afc the place they did. Omnis ratihabitio retrotrahitur et mandato ¡equipar atur.%

The contracts made by the Louisiana representatives of the houses were not submitted to their respective houses for “acceptance,’ but for “ execution,” as we have already stated, and the authority exercised by the agents in Louisiana to sell absolutely in that State was ratified (if ratification were needed) and acted upon before Erman & Cahn had acquired any rights in the premises.

We think the contracts were Louisiana contracts, and the rights and obligations of parties controlled by the decision in 47 An., p. 135, of McLane vs. His Creditors.

We are of opinion that appellees have identified, with reasonable certainty, the property sold by them, and shown that it was struck by the privilege which they claimed thereon.

We are of opinion that the judgment appealed from is c rrect, and it is hereby affirmed.  