
    
      VILLERE & AL. vs. BROGNIER.
    
    Where a contract is to be written, any party may recant, before it is signed by all.
    Jacques Villere’, Antoine Bienvenu, Antoine Carraby, Norbert Fortier, Daniel Clark, John Blanque, John Soulié, Denys Delaronde, Chalmet Delino and Bernard Marigny filed their petition in the Court of the First District, (in behalf of themselves and such other of the parties interested, therein named, as should make themselves parties to the suit) stating that, some time in the month of May 1812, P. Ambroise Cuvillier, being indebted to Brognier Declouet, in a large sum of money, for which he had given a mortgage and endorsed notes, applied to the petitioners severally and to Michel Fortier, Charles Jumonville Devilliers, J. R. Ducros the father, Pierre Sauvé, Louis Habine, Jean F. Pizerot, Jean Delasize, Michel Zeringue, the widow of Robert Avart, Bernard Bernoudy, René Trudeau, L. L. A. Harang and Joseph Montégut fils, and requested them to take an assignment of the mortgage and endorsed notes, and each of them to give to the said Brognier Declouet, his note for the sum of one thousand dollars : to which request each of the petitioners severally said they would accede, provided the said several persons named in the said transaction would join, them in the same and provided the assignment and conditions should be subsequently arranged to their satisfaction by the said Brognier Declouet: but the petitioners expresly alledged that they made no agreement whatever, with the said Brognier Declouet, and that they considered themselves as fully at liberty to execute or not to execute the arrangement proposed by the said Cuvillier, at any time before the signature of the act herein after mentioned.
    East. District.
    June 1814
    ' That, in order to facilitate the execution of the said arrangement, and to prevent the trouble of collecting all the parties at the same time, at the Notary’s office, the petitioners severally executed their separate promissory notes payable to the said Brognier Declouet for the sum of one thousand dollars, that is to say five hundred dollars, payable the first of April 1813, and 500 dollars payable the first of April 1814, and deposited the saíne in the hands of Michel de Armas, Notary Public, to be retained by him in deposit till the said proposed agreement should be carried into effect.
    That, some time after, Michel de Armas drew an act which he entered on the records of his office, dated the 2d. day of June 1812, which was signed by the petitioners. J. Soulié, J. Blanque, J. Villeré and Daniel Clark, by which, Brognier Declouet transferred to the persons above named, a debt of twenty-seven thousand dollars, due him by P. A. Cuvillier, for the balance of the price of several parcels of land, being part of a plantation, which he had sold to the said Cuvillier, evidenced by five notes of five thousand four hundred dollars each, of the said P. A. Cuvillier, endorsed by Alexander St. Amand; the payment of which was further secured by a mortgage of the premises. One of which notes had been already duly protested and judgment obtained, against the maker and endorser, and execution levied on some real property of the endorser: at the same time the act transferred to the persons above named Brognier Declouet’s right of mortgage on the land sold to Cuvillier.
    That, after these signatures were affixed and before any other of the parties had signed, Brognier Declouet directed the Notary to make an alteration, written in the margin of the act, providing that if any of the notes of the persons above named, were not duly paid, Brognier Declouet would exercise, for the amount of such unpaid notes his right of mortgage on the premises, notwithstanding the cession.
    That J. Blanque, J. Soulié and Daniel Clark, immediately on being apprised of the said alteration, went to the Notary’s office, and struck out the signatures of their respective names, from the said act, and declared to the Notary that, since the said Brognier Declouet had taken on himself to direct an alteration of the act, and had not signed the same, they broke off all negociation on the subject, and directed the said Notary not to deliver the said promissory notes to the said Brognier Declouet.
    That, after they had thus expressed their intention not to accede to the propositions made to them by Cuvillier, Brognier Declouet procured another act to be entered on the records of the Notary, which he executed himself and which was also executed by Delasize, Montégut fils, the widow Avart, René Trudeau, Jumonville de Villiers, Michel Fortier and Son, R. J. Ducros and Pierre Sauvé, the making of which instrument was neither authorised, nor was the same accepted by the petitioners, and that as soon as they received notice of the said instrument being drawn, J. Blanque, Bernard Marigny and Antoine Caraby went to the said Notary’s office and protested against the use of their respective names in the said instrument and requested the Notary to give notice of the said protest to the parties mentioned in the second instrument.
    The petition, averring that, notwithstanding the aforesaid circumstances, B. Declouet had prevailed on the Notary to surrender to him the notes placed in his hands, concluded with a prayer, that he might be decreed to restore to the petitioners their respective notes, or pay the amount thereof.
    
      The answer, after a general denial of all the facts in the petition, sets forth that the notes therein mentioned were placed in the hands of Michel de Armas, to be delivered to the defendant on his procuring the release of a judgment had against Cuvillier and St. Amand, as far as related to the latter, and on his transferring to the said Villeré and others all his right to certain mortgaged premises, by which the payment of the sum stated to be due him by Cuvillier was secured, and on his delivering to the Notary, for the use of Villeré and others, certain notes of said Cuvillier: that accordingly he had procured the release of the judgment, executed the transfer and delivered Cuvillier’s notes, whereby he had become entitled to, and did receive the plaintiffs’ notes.
    There was a verdict for the plaintiffs, on which a new trial had been ordered. But, by mutual consent the new trial was waved, judgment was entered according to the verdict, and the present appeal was taken by the defendant.
    It was agreed that the depositions of Pierre Desse and Michel de Armas should accompany the record, with the certificate of the release of the judgment, and be taken as a statement of facts.
    The deposition of Pierre Desses as follows : Pierre Desse maketh oath, that in December 1811, Brognier Declouet negociated to him a note of P. A. Cuvillier endorsed by Alexander St. Amand for $ 5400, payable on the 1st. of March 1812, which was protested at maturity. That deponent, having obtained judgment thereon against both maker and endorser, took out execution which was about to be put in force, when Cuvillier proposed the following terms to Brognier, viz, that he would pay him $ 22,000 in notes of several individuals payable to Brognier’s order one half in April 1813 and the other in April 1814, on condition that Brognier should reduce his claim then existing against Cuvillier from $ 27,400, to $ 22,000, that Brognier should assign his said claim of $ 27,400 to the subscribers of the notes Cuvillier stipulated to give him : Brognier reserving to himself his mortgage on the property he had sold to Cuvillier, in case of non payment of any of said notes.
    
    That Cuvillier having informed deponent that John Soulié was one of the makers of said notes and the syndic of the others, and would definitively conclude the bargain, deponent spoke to Soulié who informed him he might consider the matter as concluded and desired deponent to suspend his execution against Cuvillier and Saint Amand.
    That a few days after deponent saw Soulié and they both, agreed to go to the Notary (de Armas) to have the assignment drawn and deposit the notes: which Soulié accordingly did, except a few that were wanting to complete the sum.
    That Soulié required of him, the deponent, that should, leave with the Notary Cuvillier’s note for $ 5400 endorsed by St. Amand and desired the Notary to deliver the notes he had left with him, to Brognier Declouet, as soon as he should have signed in favour of the makers of the notes an assignment of his claim against Cuvillier for $ 27,400 and deposited Cuvillier’s notes completing that sum.
    That Cuvillier and Soulié pressed deponent to release his right of judicial mortgage on the land of St. Amand, which deponent did, on the assurance Soulié gave him that the matter was concluded, and that the payment of the note of which deponent was the bearer was secured by the deposit of the aforesaid notes.
    
    That deponent (hearing a few days after that Montégut son, one of the makers of the notes, had deposited with the Notary his own notes, completing the sum of $ 22,000) apprised Brognier [Declouet, who went to deposit Cuvillier’s notes and sign the assignment, that Brognier having read the act and perceiving that it did not contain an express clause reserving to him his lien on the property sold to Cuvillier, in case any of the notes he was to receive was not paid at maturity, sent for the deponent to explain this to the Notary, and deponent then said, in presence of de Armas, he had requested the insertion of such a clause, according to Brognier’s intentions; that B. Marigny, one of the subscribers of the notes, being present, observed there was nothing unjust in it: and then, without any thing more said or done, the Notary inserted the clause in the margin of the act, reserving to himself, as he said, the right of erasing it, if it did not suit the parties.
    The following facts were drawn from the deponent, on a cross-examination:
    He was empowered by Brognier Declouet to treat with Cuvillier, in regard to the claim; and treated with him, on the assurance Soulié gave him he might do so, as the greatest part of the notes of the assignees were already in Soulie’s hands. He considered Cuvillier, as the principal and most interested, tho’ not a contracting, party. He considered Soulié (as the representative of the makers of the notes proposed to Brognier Declouet, by Cuvillier) as the contracting party: Soulié having told him that he had been orally empowered by the assignees to treat for the purchase of the claim: he had not discussed the conditions with Soulié. He had been the; holder of a note of $ 5400, drawn by Cuvillier to the order of St. Amant, payable on the 1st of March 1812: but declined to say categorically whether he was the owner of it when it. became due, adding he was still the holder of it at the time. He could not recollect the precise time, when the notes were deposited with de Armas. He did not know who had given to de Armas a note of conditions to be inserted in the notarial instrument; but he heard Cuvillier, Brognier Declouet and Soulié, in behalf of the assignees, giving directions, on that subject : but he did not recollect whether the latter gave any directions till after the act was drawn out. He was desired by Brognier Declouet to attend to the preservation of his rights in the act. He considered Soulié to have the same powers from the assignees, as he himself had from Brognier Declouet: and imagined his own powers were sufficient to bind Brognier Declouet, who did not consider himself safe without the clause which was inserted, at his suggestion. He knows not to what person Brognier Declouet proposed the addition of this clause. He had frequent conversations with Soulié, in order to ascertain whether the subscription was filled.
    The deposition of Michel de Armas was as follows :
    In the latter end of the month of May, eighteen hundred and twelve, Peter Ambroise Cuvillier and Peter Desse came to my office, and the former delivered to me a rough-draught of an act by which Brognier Declouet stipulated as the assign- or of a claim of twenty-seven thousand dollars due to him, by the said Cuvillier, in favour of twenty-two individuals therein named, who stipulated as assignees for the sum of twenty-two thousand dollars; each of said twenty two individuals giving two promissory notes of five hundred dollars each, the one payable on the first of April following, and the other on the first of April in the year eighteen hundred and fourteen: that the said Cuvillier having directed me to transcribe the said act on my notarial registry, I did it on, the second of June following; that some days after J. Soulié, one of the assignees, and Pierre Desse came into my office and the former, after having read and signed the said act, delivered to me a part of the promissory notes drawn by the assignees, telling me that, after Cuvillier should have delivered to me the other notes, that the judicial mortgage registered against Cuvillier and St. Amand should have been raised, as to St. Amand, that Brognier Declouet should have lodged into my hands the notes of Cuvillier, endorsed by St. Amand, and signed the aforesaid act, I might deliver to him, the said Brognier Declouet, the notes of the twenty-two individuals above mentioned : and P. Desse. delivered to me a note of five thousand and four hundred dollars, drawn by Cuvillier and endorsed by Mr. St. Amant; that afterwards J. Blanque, D. Clark and Villeré successively came into my office and after having read the above mentioned act signed the same : that Cuvillier came also, and delivered to me the complement of the said notes, except one of five hundred dollars which was to be drawn by Bernoudy, Cuvillier telling me that he was going to write for the same to Bernoudy, who was then absent from the city; that P. Desse, who acted as agent of Mr. Brognier Declouet in this transaction, often asked me whether all the notes had already been deposited in my hands : on my answering that there was still wanting one of five hundred dollars, P. Desse requested me to inform him, as soon as it should have been left with me, in order that Brognier Declouet should come and sign the said act and deliver those which he had in his power drawn by Cuvillier s that the latter came afterwards, and inquired whether Brognier Declouet had deposited the said notes in my hands, I answered negatively, observing that I thought Brognier Declouet would not do it, till the twenty-two thousand dollars of notes, were totally in my power; that then Cuvillier told me it was a distrust out of season on the part of Brognier Declouet, and he went out, telling me that he was going to speak of it to P. Desse, On the same day, or one or two days after, P. Desse or Brognier Declouet, I do not recollect which of them, came to my office, and delivered me the notes drawn by Cuvillier ; that things remained in that situation till the 24th of August following, during which period Brognier Declouet inquired several times from me whether the twenty-two thousand dollars of notes were in my power, to which I answered in the negative and informed hifo that Cuvillier had told me that B. Bernoudy intending to oblige himself only for 500 dollars had forwarded his two notes of $ 250 each ; one payable on the 1st of April 1813, and the other on the 1st of April 1814.
    That, on the 24th of August 1812, Brognier Declouet came to my office, and inquired whether J. Montégut had not been there, on my answering that he had not, Brognier Declouet informed me that J. Montégut had agreed to give his two notes amounting together to the sum of 500 dollars in order to complete the sum of 22,000 dollars : that very moment, J. Montégut came in, made and subscribed the said two notes and delivered them to me; then B. Declouet asked me the act in order to sign it, and, after having read it, he observed to me that I had omitted to insert in it a condition, which had been agreed upon between Desse and Cuvillier, and which was that he, Brognier Declouet, intended to reserve a portion of the mortgage, corresponding to such of the notes, as should not be punctually paid, on their becoming due; observing that though the twenty-two persons with whom he had to deal were extremely solid, events could happen, in the course of two years, which could not be foreseen; that I answered to Brognier Declouet that I did not think that P. Desse had mentioned to me that condition, and that I had passed the act conformably to the rough-draught given to me by Cuvillier; then B. Declouet asked me whether there was no possibility of adding that condition to the act; to which I answered there was one, if all the parties should agree to it; and that was by making in the margin of the act a reference which should be signed by all the parties, and I advised Brognier Declouet to go and see J. Soulié or J. Blanque in order to agree on that reference; that Brognier Declouet, after telling me that he was going to try to see those gentlemen, went out of my office. That after about a quarter of an hour he came in again, telling me that he had not been able to see any of those gentlemen; that P. Desse who had come with B. Declouet endeavoured to make one remember that he had mentioned to me the condition aforesaid ; and I told him, as was the real truth, that, if he did, I had entirely forgotten it; that I then told Brognier Declouet that I was going to make in the margin of the said act the reference above mentioned which would be signed by the assignees in case they should acquiesce to it and on the contrary should be erased to remain null; that Brognier Declouet looking at B. Marigny, one of the assignees who was in my office at that time, said that he did not think that said reference would occasion the least difficulty, to which B. Marigny answered that he did not think it would; that I then made; in the margin of the said act, the said reference, and read it to Brognier Declouet, in presence of P. L. Morel, B. Marigny and Desse then present, after which all these gentlemen withdrew; that about ten minutes after, J. Blanque came into my office, asking for a copy which I had already given him some months ago and coming near the desk, on which my registry was still laying open at the place where the said act is written, “well,’' said he, “how far have we proceeded concerning this act ?” And in the mean time as he seemed to read it over he stretched out his hand, took a pen, and, without informing me of his intention, blotted out his signature; that I told J. Blanque he was very wrong in doing what he had done, without asking me whether he had the right to do it; that when a party had signed an act he could not annul his signature but by a counter-declaration; that J. Blanque answered that he was master of his signature, as long as the other party had not signed and he retired; that having absented myself from my office, on my return, my brother, who is employed as a clerk in my office, informed me that D. Clark had also come and blotted out his signature; that a few minutes after, J. Blanque accompanied by J. Soulié came in, and the latter after disputing some time on his right to do the same as D. Clark and J. Blanque, blotted out his signature; that J. Blanque, wishing to do the same with J. Villeré’s signature, I opposed it; that these gentlemen having withdrawn, a little while after, J. Blanque and A. Caraby came to ask me for their promissory notes, that I answered them that I did not think I could deliver said notes to them, considering that a deposit had bgcn made in my hands by each of the two parties and that it could only be by the consent of both parties that I could return to each party the notes which I had received from them ; that on the 26th of the same month of August, Brognier Declouet came to my office and on my informing him of all that had passed, he told me that, since the assignees objected to the above mentioned condition, which occasioned the said reference, he would give it over and he required me to transcribe the said act (leaving out the said condition) which I did and Brognier Declouet signed the act; that then B. Declouet asked me for the notes of the assignees, as it had been agreed that they should be delivered to him as soon as he would have signed the act by which he divested himself of his property ; that I then begged Brognier Declouet to permit me to keen said notes in my power fur a few days more till I had confercd about this matter with some person learned in the law; that twerdays after, A. Caraby, J. Blanque and B. Marigny came to my office and required me to receive their protest against the said act, which I did; that the act of the 26th of August was afterwards presented to several of the assignees, who after reading the same as well as the said protest and being by me informed of all that had happened, did sign the same without any hesitation; that about two months after Brognier Declouet came to my office and required that I should deliver to Kim the notes of the assignees, as being his property, by virtue of the said act, of the release P. Desse had entered of the judgment which had been obtained against Cuvillier and St. Amant, and of the deposit that he, Brognier Declouet, had made into my hands of the notes drawn by Cuvillier ; that, being persuaded in my conscience that said notes were effectively his property, I did not hesitate to deliver them to him.
    The following facts were drawn from the deponent, on a cross-examination:
    He made the first draft of an act for the transfer of a claim of Brognier Declouet on Cuvillier, to Villeré and others. Cuvillier and Desse were the first persons who spoke to him about it, and the latter handed him a rough note of the terms of the cession. Brognier never read the act till the day on which the deposit of the notes was completed, when he came to sign it, which he did not do, aliedging the omission of a clause which he had especially charged P. Desse to have inserted. The act was then signed by Blanque, Soulié, Villeré and Clark; and the signatures of Brognier Declouet, the other assignees, the Notary and witnesses were wanting for the perfection of the act. Brognier Declouet did not, of his own head (de son chef) cause any clause to be inserted in the act: but, noticing the omission alluded to, asked the deponent whether a new act would be necessary and was answered, that with the consent of all parties the clause might be added in the margin, by an apostille, which being signed by all would be as valid as if it was in the body of the act: whereupon the deponent drew the clause, on a separate piece of paper, and invited Brognier Declouet to see either Soulié or Blanque, who were considered as the agents of the assignees and communicate the clause to them and with their consent it should be inserted. Brognier Declouet effectively went out and returned, about one half of an hour after, saying he was unable to find either of the gentlemen, and as it was late, the business should be postponed till the next day, when the Notary, of his own accord, proposed to insert the clause, adding that if the gentlemen did not consent, it should be annulled: to which Brognier Decloued assented, but did not then, nor at any time after sign the act. Blanque never presented himself to the deponent as clothed with the powers of the assignees. Cuvillier and Desse, when giving directions for the draft of the act, did not shew to the deponent any authority from the parties. Blanque, Soulié and Clark, after erasing their signatures, recommended to the deponent, not to part with the notes. Two days after, Brognier Declouet required the deponent to transcribe the act, without the clause in the margin, objected to by some of the assignees, which being done Brognier signed and required from the deponent the notes of the assignees, and was answered that the deponent, being ignorant whether they ought to be delivered, would take advice, and consider himself as holding the notes for Brognier Declouet, if the latter had really a right to them : after this he drew, at the request of some of the plaintiffs, the protest mentioned in the petition.
   By the Court.

The understanding of this case, which, at first sight, may appear intricate, depends altogether on a clear view of the principal facts, as they stand by themselves, when disengaged from the crowd of unimportant circumstances, with which they are attended.

Ambroise Cuvillier, being indebted to Brognier Declouet, one of the appellants, in a sum of $ 27,000 payable at one, two, three, four and five years, for the price, or the residue of the price, Of some real estate, which he had bought from him, and finding himself unable to satisfy that debt as it became, due, contrived to procure from twenty-two individuals of his acquaintance, among whom were the appellees, a promise to pay Brognier, in their own individual notes. The understanding of the parties, so far as the intention of each may be conjectured from the acts and declarations of some of them, seems to have been that Brognier Declouet should transfer to these twenty-two persons all his rights and actions against Cuvillier, and that he should thereupon receive from them their own individual obligations at one and two years, to the amount of $ 22,000. This arrangement was negociated between Pierre Besse, agent of Brognier Declouet, and Ambrotse Cuvillier. John Soulié, one of the twenty-two persons above mentioned, supposed by Desse to have power to act in the name of them all, had also some conversations with P. Desse upon the subject ; but never entered into any discussion with him concerning the contemplated conditions of the contract. Those conditions were reduced to writing on the 2d of June 1812, by Michel de Armas, Notary Public, conformably to a sketch which Cuvillier gave him. The principal outlines of them are, that in consideration of the sum of $ 22,000, paid to Brognier Declouet by the twenty-two individuals therein named, in their own several promissory holes at one and two years, he transfers to them his claim against Cuvillier amounting to the sum of $ 27,000, as established in the bill, of sale of part of his plantation to said Cuvillier, that he delivers to them five notes of the said Cuvillier endorsed by Alexander St. Amant, each of the sum of $ 5,400, which had been consented by Cuvillier and St. Amant to facilitate the disposal of the aforesaid sum of $ 27,000; and that he subrogates them to all his rights, actions and mortgages against Cuvillier. Soulié, after having read the instrument, signed it, and delivered to the Notary some of the promissory notes which were to be the price Brognier’s transfer, telling the Notary that after Cuvillier should have brought him the remainder of the promissory notes, and after Brognier should have complied on his side with his engagements, by releasing a certain judicial mortgage obtained against St. Amant, on the first of the above mentioned endorsements, by delivering the notes subscribed by Cuvillier and endorsed by St. Amant, and by affixing his signature to the contract, he might then deliver him all the said promissory notes of the twenty-two assignees. Some time after Soulié had signed the contract, three more of the twenty-two parties came in and signed.

All the notes, however, being not yet placed in the hands of the Notary, Brognier did not then examine the stipulation of the instrument. In the mean time, one of the twenty-two parties having expressed that he would not bind himself for one thousand dollars, but only for five hundred, it became necessary to look out for a twenty-third subscriber, who would assume the payment of the remaining five hundred dollars, in order to fill up the sum $ 22,000, originally agreed upon. This circumstance having caused some more delay, near three months elapsed from the day on which the instrument is dated, before the sum of $ 22,000 was completed. On the 24th of August, Joseph Montégut junr. became a party to the contract and delivered his notes for the $ 500 remaining. Brognier Declouet their took tip the instrument, read it for the first time, and finding that it did not contain a clause, which he deemed important to his interest, to wit, a reserve of his mortgage on Cuvillier’s purchase for so much of the $ 22,000 as might happen not to-be paid on the, notes becoming due, he refused to sign the act as it was, and signified his intention to have this clause inserted. The clause was afterwards added in the-margin; and on discovering this alteration, and being informed of Brognier’s refusal to sign the instrument, three of the four who had signed it, blotted out their signatures. Brognier finding then that he could not obtain the consent of the parties to the addition of this clause, caused the Notary to transcribe the instrument as it stood before this alteration, and signed it. Of the twenty-three other parties, eight only appear to have signed. Some time after, Brognier prevailed upon the Notary to surrender him the notes which had remained deposited in his hands, and negociated some of them.

In this state of things, the appellees Instituted the present suit in the Court of the First District for the recovery of their notes or of their amount and obtained there the verdict and judgment from which this appeal has been claimed.

Such are the facts on which this Court has to decide, 1st. whether the contract intended by the parties was ever completed; and 2dly. whether, supposing the contract not to have been entirely completed, the parties could recede from their promise, at that stage of the agreement, under the peculiar circumstances attending this case.

Upon the first question, to wit, whether this contract was ever completed, the inquiry which naturally presents itself is, in what manner do we see that each of the twenty-two persons intending to be parties to this agreement did agree with Brognier on the conditions of the contemplated contract ? This could be done only in one of two ways, either by giving their special power to some person to represent them, or by acquiescing one by one to those conditions. As to their having authorised any person to contract in their name, there is no evidence of it in any part of the record. The only act of theirs from which it might be presumed, that they intended to authorise J. Soulié to act for them, is the delivery of some of the notes into his hands; but other notes were delivered to Cuvillier ; was Soulié the agent of some, and Cuvillier the agent of the others ? Besides, is the delivery of these notes an evidence of the intention of the parties as to the conditions on which they were to be given to Brognier ? The declaration of Desse, as to the agency of Soulié, is not more satisfactory. Soulié told him that the other subscribers had authorised him verbally to treat of the purchase of Brognier’s claim against Cuvillier. Is this assertion of Soulié sufficient evidence of the power given to him by the other subscribers ? And if it should be, does it explain the extent of that power ? Does it show that they had bound themselves to abide by what he should stipulate ? Desse himself was so far from considering Soulié as the attorney in fact of the others, that he did not enter into any discussion with him touching the conditions of the contemplated contract.

It is very plain that the twenty-two subscribers of the notes, though they may have employed Soulié to take the steps preparatory to the contract, reserved to themselves anally to agree or disagree to the conditions of it, when they should be reduced to writing and communicated to them. Of that there needs be no other evidence than that each of them was to put his signature to the contract. But supposing Soulié to have been by them, fully authorised to contract with Brognier in their name, it does by no means follow that the contract was ever completed between them and Brognier. The coiiditions of the contract were reduced to writing as understood by Cuvillier and Soulié; but when Broguier came to read them, he found that they were not the conditions to which he would assent; he refused to sign them, and caused them to be altered. The contract therefore was not complete: there was still a clause on which the parties had not agreed; and in that situation of things some of the parties having thought fit to recede, an end was certainly put to the contemplated agreement as to them. In vain did Brognier withdraw his demand afterwards, and yield to their own terms. If they were one moment at liberty to retract and did so, they were completely discharged, and no act of the other party could bind them again.

Let us add to this that should no such circumstance have taken, place, still the parties might have recanted before signing, because it is a principle of our laws that where it has been agreed that the contract should be reduced to writing, until it is actually written and signed by all parties, either of them may recede. Febrero de Contratos chap. 7, sect. 1, no. 19, See also Domett, book 1st. tit. 1, sect. 1, art. 15.

But, it is said, that in this case the appellees were not at liberty to recede, because the other contrading party had been induced to make sacrifices towards the performance of the contract on his part. In support of this, the appellant cited Pothier's Contrat de Rente, chap. 4, art. 1, sect. 3. Before examining whether any and what degree of analogy exists between this ease and that supposed by Pothier, we ought first to ascertain whether it be true that the appellees have receded from a contract; and that brings us back to the question: was any contract entered into between Brognier and the appellants? For unless the terms of the contract were finally agreed upon, there can have been no such a thing as a retractation, a retractation supposing always a previous consent. But, admitting the conditions of the contract to have been agreed to on both sides, what were these conditions ? Certainly those which were, inserted in the original instrument, signed by some of the parties, and afterwards recognised by Brognier. His reserve of a mortgage on Cuvillier’s property never can have been one of the conditions accepted by the assignees of all his rights, actions and mortgages against Cuvillier, for it is at war with the spirit and the letter of the whole transaction. It shows itself to have been an after-thought, and proves that the recanting party was Brognier himself, who after having agreed to transfer to the appellees and other subscribers all his rights against Cuvillier, signified his intention to retain the most important of those rights, to wit, his mortgage on Cuvillier’s estate. If, therefore, an opportunity was then offered to the appellees to withdraw from the intended contract, Brognier has none to blame but himself. The same may be said of the sacrifice which he made when he released the judgment obtained against St. Amand. If the conditions were not finally agreed upon, why was he so forward in executing what was not yet an obligation on his part ? If on the contrary, the terms were accepted on both sides, they must have been those which were expressed in the instrument as originally reduced to writing, and then why did he, by his recantation, release the other parties from their engagement ?

It may be further observed that the discharge of the judgment obtained against St. Amant upon one of the five notes bearing his endorsement does not appear to have been any part of the conditions of the contract, as understood by all the parties; it not only makes no part of the stipulations contained in the instrument; but is a departure from the obligation there agreed to by Brognier to deliver to the assignees the five notes subscribed by Cuvillier with the endorsement of St. Amant, completing the sum of $ 27,000 by him transferred.

From this view of the case it may be concluded, that the contract, intended to be entered into between the parties, was never completed; and supposing it to have been carried too far for any of the parties to retract without causing prejudice to the other, the first departure from it was the act of the appellant Brognier, not of the appellees.

The promissory notes of the appellees, deposited in the hands of the Notary Public to await the consummation of the intended agreement, ought therefore to have been returned to the subscribers of them, when they signified their determination not to complete the contract. The surrender of these notes to Brognier, however innocent may have been the intentions of the depositary, was certainly improper, and the appellees ought not to suffer for it.

It is, therefore, ordered and decreed that the judgment of the District Court be affirmed with costs.

On the application of the defendant, the Court granted a re-hearing. See post, December term.  