
    No. 1094.
    Mrs. Widow de St. Romes v. Levee Steam Cotton Press.
    Payment of dividends of stock to a person not authorized to receive it, will not protect the com* pauy from again paying it to the owner.
    Prescription only begins to run against a dividend, declared by a company in favor of a stockholder, from the period at which he became aware of his right to claim it. , -y
    APPEAL from the Fifth District Court of New Orleans, Beaumont, J.
    C. Roselius & A. Philips, and L. E. de Si. Romes, for plaintiff and appellant.
    
      Baaey, Maries & Butler, for defendant and appellee.
    
      Brief of plaintiff and appellant.
    
    The plaintiff and appellant avers that she is the owner of sixty-six shares of the capital stock of the Levee Steam Cotton Press Company, and as such entitled to $2,376, dividends declared on the same during the years 1848, 1849, 1852 and 1853. »
    The defendant admits that the plaintiff was the owner of the stock, and that the dividends were declared as stated; but set up the, special defence that the dividends were paid to, and the stock sold by Pierre Deverges as the agent of the plaintiff. 1 : ’
    From these pleadings it is evident that the burden of proof devolves on the defendant. . . ,-
    There is no evidence of the agency of Devergés, so far as these transactions are concerned. On the contrary, it appears that on the 18th of January, 1845, two years before the first of the dividends claimed in this case was declared, a special power to collect a dividend of three hundred and forty-four dollars ($344) was given to Devergés. Yet in the absence of all proof on this subject, j'udgment was rendered for the defendent.
    This decision, we respectfully submit ought to be reversed, and judgment rendered in favor of the plaintiff, as prayed for in her petition.
    
      Brief of defendant and appellee.
    
    * * * It is not denied that the diyidends sued for by plaintiff were paid to Devergés, claiming to be agent, nor is it denied that he, pretending to act as agent of plaintiff, transferred the sixtv-six shares to Cohen. It is however asserted, that Devergés was not the agent of Widow de St. Romes, or authorized to receive payments of dividends, and to make transfer of stock. This case, then, presents a simple question of fact. Was Devergés the agent of plaintiff, .or authorized by her to receive payment, or make transfer? If he was, then the judgment of the lower court must be affirmed; if not, that judgment must be reversed, and a decree rendered protective of plaintiff’s rights. We proceed to show:
    That Devergés at the time he received payment of dividends, and made transfer of stock in the capacity of agent of Widow de St. Romes, was really and truly such. !
    Had it have been in the power of defendants, to have produced upon the trial a written power of attorney, this question of fact would soon have been put to rest; but that document having been destroyed, as we may well presume, by the conflagration of the cotton press, in the year 1858 or 1859, (Record, p. 19) or by the military authorities in 1862, “ at which time they took possession of the press, the office, safes, books, armoirs, and everything else, and destroyed the most part of the company’s records,” the defendants are driven to secondary evidence to prove the fact of agency. And here, we hope, the Court will bear in mind that this secondary evidence is adduced, not to establish a general agency, but for the purpose of showing such intimate and extended relations between Devergés and plaintiff, as to preclude any other presumption, than that he had the special power to receive the payments of dividends, and to make the transfer of stocks in controversy. *
    
      * * * Devergés, as shown by general reputation, having been , the agent of Mde. de St. Romes for many years immediately previous to his death; this agency, having been admitted in the insolvent proceedings pf Devergés, to which plaintiff was a party; his power to represent, her having been recognized by the banks; a special power of attorney to collect dividends from the New Orleans Insurance Company having been given; Mde. de St. Romes, by a special power, having authorized Devergfes to collect dividends, not only from the New Orleans Insurance Company, but also the dividend of Í845 from the defendant; it having been the invariable custom of defendants not to pay dividends to an agent, nor through him to transfer stock, without the production of a power of attorney; and the original certificates of stock held by Mde. de St. Romes, being in the hands of defendants and cancelled; how can Your Honors, under such circumstances, come to any other conclusion, than that Pierre Devergfes was specially authorized to receive and receipt for the dividends belonging to plaintiff, and to transfer the sixtyTsix shares of stock, which she formerly owned and held?
    The attempt to collect the dividends and the value of the stock, is evidently an after-thought on the part of plaintiff. The dividends became due in the years 1848, 1849, 1852 and 1853, respectively, and in the last mentioned year, the transfer of the stock was made; and yet it was not until 1861 that plaintiff set up a reclamation for the dividend and stock. Why this long delay? Your Honors’ will find an answer to this question, in the fact that Devergfes became insolvent, and went into court in 1858 or 1859. Up to that time plaintiff considered Devergfes good, and therefore presented no claim against the company. Then she discovered his insolvency, and attempted to make up her losses through him by the present suit.
    The defence made is conclusive, but another may be found in the prescription pleaded by defendants. This point is too clear to require an argument. It speaks for itself.
   Ilsley, J.

Mrs. de St. Romes was the owner of sixiy-six shares of the capital stock of the Levee Steam Colton Press, a duly incorporated company, located in the city of New Orleans, and as such was entitled to dividends on her stock, declared in the years 1848, 1849,1852 and 1853. Her original right to these dividends is not denied, but it is urged by way of defence, that these dividends were duly paid to her agent, Pierre Devergfes, who was authorized by her to receive them, and also to sell the stock, which he did to O. A. Cohen, sometime in the year 1853, and that the original certificates were surrendered and cancelled.

The prescription of three, five and ten years is also pleaded.

On the merits, the case presents a simple question of fact: Was Pierre Devergfes the duly constituted agent of the plaintiff, to receive payment of and to grant a valid acquittance for these dividends, and to sell her stock?

A careful perusal of the testimonyin the record, the fact of the destruction of the company’s papers being borne in mind, has failed to satisfy iis that Devergfes was clothed by the plaintiff with authority either to receive her dividends for the years in which they are now claimed or to sell her stock in the company.

■ There is a special power in the record to Devergfes from the plaintiff, to receive her dividends for the year 1845, two years previous to the year in which the first dividend is now claimed, but we cannot infer from that that similar powers were given for subsequent years.

The plea of prescription is untenable.

The defendant’s charter is not in the record, so that we cannot ascertain from that, what, if any, regulation was therein made in regard to dividends, the company might from time to time declare.

The possession by the company of the dividends declared by it, being that of a mandatary is a precarious one, unless it shows some initial point at which its possession was one, animo domini.

It is discretionary with incorporated companies to declare dividends whenever they think proper, and it is only from the period at which a stockholder becomes aware of his right to claim dividends declared in his favor, that the vice of preeariousness is purged, that the nature of the possessor beeomes changed, and the initial point for prescription is determined.

There is nothing in the record to show that the defendant’s possession of the plaintiff’s dividend was ever any other than a precarious one.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that the plaintiff, Mrs. Widow de St. Romes, have judgment against, and do recover from the defendant, the Levee Steam Cotton Press, for the sum of two thousand three hundred and seventy-six dollars, ($2,376) with legal interest from judicial demand, and the costs of suit in both courts.

On Rehearing.

Howehii, J.

A rehearing has been granted in this case for the purpose of amending the decree on the prayer of the appellant, to the effect that she be recognized as the legal owner of the stock claimed, or her right to claim it be reserved.

As the alleged transferree of the stock was not a party to this suit, the plaintiff could not justly be recognized as owner of the stock in question; but we think a legitimate sequence to our opinion heretofore expressed, is a reservation of her right to claim said stock in a proper proceeding.

It is therefore ordered, that the decree rendered herein by us be amended by adding the words, and that plaintiff’s right to claim in a direct action the stock in controversy herein be reserved.”  