
    No. 1033.
    Clark & Brisbin v. Francis Bouvain & Wm. H. Lewis. John Ermon, Warrantor.
    The doctrine is well settled, that a party talcing a pledge in writing with authority to sell the thing pledged, is limited in his authority to sell the articles mentioned in the act oí pledge; but where the evidence shows that he has authority to sell all the materials iu a certain building, which contains the articles he has in pledge, mixed with others belonging to the pledgor, the sale is valid and binding.
    Where evidence has been received without objection on points not presented by the pleadings, the parties are bound by it.
    APPEAL from the Sixth District Court of New Orleans, Duplantier, 3.
    
    
      Marr & Foute, for appellant. E. Filleul, for appellees.
    
      W. H.Paxton, for warrantor.
    
      
      Brief of Warrantors.
    
    * * * On the 24th March, 1858, John Ermon loaned plaintiffs twenty-five hundred dollars, and took two notes of twelve hundred and fifty each, and on same day took act of pledge to secure the payment of the same. These notes were not paid, but on 1st November, 1861, Clark & Brisbin executed tiMiim their note for $2,532 50, with eight per cent, interest from date — being for same consideration, the articles pledged (with some others added) were removed to No. 19 Commercial Place, and most of the type and material promiscuously mixed.
    The city was captured April 29,1862, and under General Butler’s orders all who did not renew their allegiance were required to furnish a schedule of their property and surrender the same.
    On the 1st September, 1862, W. J. Hammond, at the request of Clark & Brisbin, took an inventory, for purpose of transferring these articles under military order.
    Clark & Brisbin left this city on the 19th May, 1863, under military order; but before leaving, and wishing to secure their property from confiscation, and wishing to pay their debts with it (certainly an honorable act), they placed all the material in the possession of Ermon, gave him the key of the store, requested him to pay the rent then due, $900, to Mrs. Eustis. and such rents as might afterwards fall due, which payments he made. Mr. Clark then went with Ermon to Buckner’s store, and there in the presence of Buckner and Ermon, said that Ermon had a mortgage on the establishment, printing materials, etc., and that he, Clark, wanted to settle the rent due, and that Mr. Ermon paid him the rent due up to that time, and rents afterwards accruing, and Clark then and there gave Buckner, the witness, fully to understand that Ermon was authorized to sell the materials, pay the rents; also to pay what was due to him, Ermon. Ermon paid me the rents, kept the keys for five or six months, and when the material was sold he returned me the keys.
    In March, 1864, the presses and material were advertised for sale, and on 2d April, 1864, they were sold to defendants for $3,000; cash $100, and three notes of $966 66, payable at six, twelve and eighteen months, interest eight per cent, after due. The press and material were in a low, damp room, 19 Commercial Place, not used for four years, and in bad condition; and were sold for their value.
    A statement of the account between John Ermon and Clark & Brisbin, is thus:
    Clark & Brisbin.............................................Dr.,
    To John Ermon:
    1861.
    Nov. 2. — -To your note due this day, secured by act of pledge. .$2,532 30
    To interest eight per cent, to April 2, 1864,................... 489 52
    To rents paid Buckner,...................................... 675 00
    To Advertising Picayune.................................... 2 00
    $3,698 82
    1862.........................................................Cr.
    April 2, — By proceeds on six, twelve and eighteen months, . $3,000, discount off $200..........................$2,800 00
    Due Ermon, April 2, 1864.................................. $898 82
    Such are the facts. There are certainly no equities to be asked for by Clark & Brisbin of John Ermon, as they are yet his debtors in the sum of $898 82, and interest for three years; nor will the rigid principles of law aid them.
    1st. This is a controversy between plaintiffs and John Ermon, called in warranty. No creditors or third persons appear to contest the acts of pledge.
    2d. The first authentic act of pledge, dated March 24, 1858, certainly covered all the printing materials therein named.
    
      3d. There were materials afterwards purchased. They were included in the second act of pledge (verbal). All the material were delivered to John Erinon, with the key of the store, and authority given him by the owners to sell the same, pay the rents, and pay what was due Ermon. John Ermon had actual possession of all the articles from May 19th, 1863, the time Clark & Brisbin left the city, up to April 2d, 1864, the day of sale, on which day they were sold under instructions of Clark. (See testimony of Buckner.)
    Pledges of movables may (not shall) be made by private writing and actual delivery, and if so made shall be valid against creditors, etc. Acts 1855, p. 348, Phillips’Digest, p. 405.
    The law only requires, in cases where creditors are contesting, that the pawn or pledge should be by written act. C. C., Art. 3124, 3125.
    ■ The Civil Code, Art. 3123, requires that the debtor wishing to pawn a claim or note on another person, must make a transfer of it m the act of pledge, endorse and deliver it.
    On this Article, in 9th An. page 539, the Court decides: “ That as the bills were not endorsed as required by C. C., Art. 3123, the syndic cannot, upon a mere formality of this sort disturb the act of pledge, as the good faith of the transaction was not impeached, nor showed any injury to creditors.”
    The syndic is the assignee of an insolvent’s estate, and representing creditors. If he could not impeach the act of pawn for want of form, how can Clark & Brisbin, who have never had the misfortune to require the services of a syndic?
    If there were creditors contesting, the full compliance with the formalities of law might bo required. 3 Martin’s Rep. 523. Story on Bailments, sec. 290.
    If the contract was made in good faith it cannot be annulled, although injurious to creditors. C. C., Art. 1895, 1940, 1973, 1974.
    I ask your attention to the good faith and liberality of Ermon, called in warranty on the 24th day of March.
    A. D., 1858, he loaned them in cash $2,500. On the day of sale, April 2d, 1864, they owed him $3,698 52. If you confirm the judgment, they will still owe him $898 92. If you reverse the judgment and order the restoration of the articles on a judgment for their value, it will leave Ermon’s estate as their creditor in the sum of $3,698 52, with but little hope of recovery.
   Hyman, C. J.

Plaintiffs seek to recover a printing press, and other printing materials, which they alleged to belong to them, and to be in the possession of defendants.

They prayed, .that, .defendants. be ordered to restore this property'tio them, or in case of failure-to restore-it; that they have judgment against defendants for the value thereof.

Defendants, in answer, claimed, title to, the property, in virtue of a sale made to them in April, 1864, by J. Ermon, whom they called in warranty. Ermon, in his answer, to .the call -in warranty, admitted the sale to defendants, and averred that he had a right to sell the property by a pledge of it to him made by plaintiffs' in March, 1858.'

It appears from the evidence adduced, that plaintiffs, who pursued the avocation of job printing, pledged, by written act, on 24th March, 1858, the materials which they used in carrying on their business to Ermon, (giving him authority to sell them in such manner as he might deem proper) but kept.possession of the same until May, 1863, when they delivered them tq -him, together with other printing materials which they acquired since making the act of pledge, declaring at the time of delivery that they were going to leave the city, and that he had a mortgage on the establishment, the printing materials, and that he was fully authorized to sell and dispose of them.

Ermon thereon paid for plaintiffs, at their request, the rent owing by them to the owner of the house in which were the materials, and rented the house for himself from the owner until he could dispose of them. He advertised all the materials for sale, and on the 2d April, 1864, sold them to defendants for $3,000, this amount being less than that owing by plaintiffs to him.

Plaintiffs claim in this suit only the materials which they bought since 24th March, 1858, the date of the pledge to Ermon, and contend that as they were not pledged to him, he had no right to sell them under the act pledging other property.

This position cannot be gainsaid, but the evidence is, that Ermon had authority to sell the materials that were in plaintiffs’ establishment, in May, 1863, and that he sold them to defendants.

Plaintiffs abandoned their occupation, ceased renting the house in which their materials were,, and assented that Ermon should rent the house, thus giving the appearance that Ermon was the owner of property therein. Such conduct, on the part of the plaintiffs, might well raise the question (if there was no evidence of authority in Ermon to sell) whether plaintiffs could recover from defendants.

Plaintiffs contend that the answer of Ermon was conclusive against him, because he relied therein in the pledge of 24th March, 1858, as his authority ro sell the materials, and that he could not depend on other authority than that alleged. The evidence of other authority than that in the act of pledge was introduced without objection, and parties are bound by evidence so received on points not presented in the pleadings.

Judgment in the District Court was rendered in favor of defendants and warrantor, without prejudice to their right of warranty, if any, against Ermon.

Let the judgment of the District Court be affirmed, and let plaintiff, who is appellant, pay cost of appeal.  