
    No. 2679.
    E. Fendler v. M. C. Daigre et al.
    A jewelry merchant sold a lot of costly jewelry to Mrs. Daigio lor llic use oE her daughter,, then a minor, for which she paid a portion of tho price in cash and gave her individual note for the balance. Suit was brought against the maher ot tlio note in her-individual ■ capacity and as tutrix ot her minor daughtor, whom, it was alleged, was the recipient of tho jewelry. Judgment was rendered against her individually, and judgment of non-suit as tutrix. See 19 An. 190. After majority ot tho minor, this suit was brought againsther. to recover the amount of the note, on tho allegation that iho jewelry was purchased for hor use; that she had received it, and still possessed and owned it. Tho evidence given on trial failed to establish the fact that the jewelry was purchased for the daughter, or that she-received it as her individual property. Hold — That the jewe.er could not recover the.price from the minor, nor could he recover the amount ironi the tutrix out of tho minor’s estate; that his only 1 ccourse was against the tutrix m her individual capacity.
    from the Fifth Judicial District, parish of East Baton Rouge. Bosey, J.
    
      Burgess & Chaney and Fuqua efi Cdlliham, for plaintiff and appellee. Samuel B. Greaves and A. S. Herron, for defendant and appellant.
   Taliaferro, J.

This suit is, to a great extent, the same in character and purpose with the one heretofore before this court, bearing the same title, and reported in 19 An. p. 190. The x>ar-ties are the same. Lucy Daigre, however, during the pendency of that suit being a minor, was subsequently emancipated by public act, and afterwards became the wife of J. C. Beard. The judgment first rendered against the plaintiff by the district court was changed by this court into one of nonsuit as to the heirs of Gilbert Daigre. He now renews the action. He alleges that in 1863 Mary C. Daigre, widow of Gilbert Daigre, and tutrix of her minor children, heirs of Gilbert Daigre, contracted with him a debt amounting to upwards of two thousand eight hundred dollars, of which one thousand dollars were paid, and for the remainder she executed her promissory note with interest. That this indebtedness grew out of a purchase of costly jewelry for her daughter Lucy, who received it and has worn it and appropriated it to her sole use. He avers that upon the death of Gilbert Daigre, his widow caused all the separate estate of her husband, which was of large amount, to be illegally adjudicated to her, together with the half of the community property falling to the minors in right of- then-father. That the account rendered by the tutrix of her tutorship was run up much above her real liability to the minors, in order to interpose their claipis as a shield to iwotect her against the just demands of her creditors. He seeks to have the adjudication annulled and set aside, and to have the indebtedness of Mrs. Daigre reduced to its real amount, in order that her share of the succession may be shown to be of greater amount than that of her indebtedness to the heirs.

In the opinion of this court, rendered in the former case, the xolaintiff failed to make out his allegation of fraud against the tutrix; and it was announced that, as the debt contracted by her with the plaintiff was contracted subsequent to the adjudication and the account he. complains of, he would be precluded from showing their illegality, if it existed. Wo are inclined to concur with the judge a quo in assuming from the pleadings that the whole matter is, in substance, narrowea down to the simple question, whether Lucy Daigre, now Mrs. Beard, having, as is alleged, received and appropriated the jewelry to her own use, shall not be condemned by judgment to pay the plaintiff’s demand, and wo shall confine the investigation to that issue.

The parties defendants put in general denials. Judgment was rendered in the court a qua in favor of the plaintiff, and against the defendant, Lucy Daigre, for the amount claimed, and she prosecutes this appeal.

The testimony, to no small extent, is conflicting. The plaintiff swears that the jewelry was purchased in 1862 for Miss Lucy Daigre. That she came to him several times, requesting that he would speak to her mother to have a diamond necklace made for her.’ To this request, it seems, the plaintiff was not unwilling to accede, and, accordingly, that he did speak to Mrs. Daigre about it, which resulted in his receiving an order for a necklace not to exceed in price $2000. He says, .also, that diamond rings were ordered for Miss Lucy, and that these were for her use as well as the necklace; that these articles wore all received, a part of the price paid, and the note sued on given for tlio remainder.

Bauman, a witness for the plaintiff, states, in substance, about the ■same facts. lie was, at the time these articles were furnished, a workman in tho x>laintiff’s shop. Mrs. Pike says that she was Avith Mrs. Daigre one day when she went to Mr. Fendler’s to order a necklace for Miss Lucy Daigre. That she remembered seeing the necklace only •once, and that was at Mrs. Daigre’s house on the day that the officers of tho Federal gunboats walked through the streets of Baton Rouge. On this occasion Miss Lucy produced a stocking which, she said, contained her jewels, and took from it a necklace, which she placed around her neck, saying: “ This is the necklace I purchased from Fendler.” This witness heard several conversations, respecting the necklace, between Mrs. Daigre, Miss Lucy, and Miss Napp, tho governess, at that time in Mrs. Daigre’s house, and it Avas always spoken of as Miss Lucy’s, and that it had been ordered for her; but did not recollect what Mrs. Daigre said on the subject. Miss Sheppers, the other lady AArho testified on the part of the plaintiff, know nothing of the matter, except that on one occasion in 1862 Miss Lucy stopped at the house of witness’ father, holding in her hand a morocco case, from Avhich she took and exhibited to tho witness a diamond necklace, Avhicli she said came from Mr. Fendler’s store.

This testimony establishes that Lucy Daigre in 18G2, then a girl ■about fourteen years of age, exhibited tho diamond necklace on two occasions — once at her mother’s house and once when she stopped at the house of Mr. Sheppers. On those occasions she called the necklace hers. The testimony, also, establishes that she Avas desirous to •obtain it, and that her mother gave orders to plaintiff to furnish if at a cost not to exceed two thousand dollars. The plaintiff is the only Avitness who testifies to seeing the young lady wear the jewelry. The mother undoubtedly purchased the jewelry, and the OAÚdencc seems strong that she intended it 1 or her daughter, but this is not entirely certain; for in her oavu testimony she swears positively that she bought the jewelry as a good investment, and that she afterwards .sold it on her oato account, and belore tho institution of the suit against her, for tho price of it. This apparent buying for tho daughter, whatever may have been her declarations at the time, that tho purchase was for tho daughter, may have taken place to gratify the AArhim of tlio girl, fostered and encouraged, as it was, by tho jeweler. She may have deemed the jewels more likely to retain a permanent value than the currency then prevailing. There is nothing whatever shoAving that she bought them as tutrix or that the price was to be charged against the minor. On the contrary, it plainly appears that the plaintiff, at the time of the sale to Mrs. Daigre, looked alone to her for payment, and not at all to payment out of the means of the minor. This fact is well established by the testimony of Banm, which he gave on the first trial, and it is corroborated by the plaintiff’s taking the note of Mrs. Daigre in her individual capacity, and not as the representative of the minor. Mrs. Daigre is .undoubtedly bound for the payment of the note, and-.the plaintiff obtained judgment against her in the former suit. See 19 An. 190. But he now prays a judgment against Lucy Daigre, now of the age of majority, on the ground that she gob the jewels, and had the use of them, and has them now in her possession, and that they constitute part of her fortune. I-Iow does his proof sustain these allegations “! Ho propounded interrogatories to this defendant. These wore pointedly answered, disclaiming the purchase of the jewels being made for her, denying ever having had possession of them or of knowing what disposition was made of them. . The answers are not disproved by countervailing evidence. The evidence, on the whole, fails to show any material fact sustaining the allegations now relied upon by the plaintiff as entitling him to recover against Lucy Daigre.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be annulled, avoided, and reversed. It is further-ordered that there be judgment in favor of the defendant, Lucy Daigrc; the plaintiff and appellee paying costs in both courts.

Rehearing refused.  