
    
      BAYON vs. PREVOT.
    
    East’n. District.
    Dec. 1815.
    
    Appeal from the second district.
    He who takes the change of a slave, without reward is not liable for his fortuitous escape.
    The petition stated that the plaintiff was owner of a mulatto slave, who ran away and arrested and confined in the jail of the city New-Orleans; that the defendant, a neighbour of the plaintiff, being occasionally in that city, took upon himself, of his own authority and upon his own responsibility, to take the mulatto out of jail (representing that he was charged by the plaintiff to do the same) for the purpose of bringing him to the plaintiff—and did actually start on his voyage to the plaintiff’s residence with the said mulatto, but through negligence or otherwise suffered him to escape, whereby the plaintiff lost his slave and the defendant became liable to pay his value.
    The general issue was pleaded.
    There was a verdict and judgment for the defendant, and the plaintiff appealed.
    The statement of facts was made by the judge, the parties not having been able to agree thereon. It informs us, that a witness deposed, that on the second day, after the defendant left New-Orleans, with the plaintiff’s slave, the latter made his escape; that the defendant discovered this at 6 o’clock, A. M., and at 7 ½ A. M. proceeded on his voyage, without remaining to make search for the slave; that the slave was not confined, but was suffered to walk on shore, whenever the boat stopped, and the nature of his disorder required him frequently to go out. At the time he was received by the defendant, he was quite indisposed, and continued so until he escaped: he fell down once or twice from a weakness occasioned by his sickness, the dysentery. The defendant is a physician, but did not give, to the knowledge of the witness, any medicine to the slave while on board, and took no more care to prevent his escape, than that of others on board: he having several.
    Four depositions, taken before the trial, accompanied the statement of facts, as part of it.
    
      Dulquhold deposed, that about one year ago, the defendant arrived at the deponent’s house in New-Orleans from La Fourche, with a sealed letter from the plaintiff to one Bonnell, which, at the defendant’s request, was carried to Bonnell’s residence and left there: that, on the day the defendant returned, Bonnell brought the slave in dispute to the deponent’s house, with the view, as he understood, that be might be taken home by the defendant: he was not confined by irons or otherwise and was sick with the flux.
    
      Casseyn deposed, that the defendant took a runaway mulatto slave to carry him to the plaintiff, his master.
    
      Bonnell deposed, he received a letter from the plaintiff, brought by the defendant, relating to the slave in dispute, requesting him to make inquiry from his former owner; that he informed the defendant that the slave was in jail, sick; that the defendant went to see him, at the request of the deponent, when he informed the deponent that the slave had a dysentery, that as he had a boat, if the deponent would deliver the slave to him, he would take him up to his master, to which the deponent assented: that on delivering the slave, the deponent informed the defendant the slave was a bad one, and would, if not properly attended to, make his escape: to which the defendant replied, that the deponent might rest satisfied, as the defendant had undertaken to deliver him safe to his master.
    
      St. Cronau deposed, that he was in the boat with the defendant and the slave in dispute; the slave was ordered to work; he was so enfeebled by sickness that he fell down in going on board, and once into the water. He slept in the forepart of the boat. On the second day, in the night, he ran away. The deponent was present when the slave was brought to Duquhold's, and never heard any conversation between Bonnell and the defendant, in which the former said he would be accountable.
    Besides the statement of facts, there was a bill of exceptions taken to the opinion of the court, in the charge to the jury, asserting that the defendant was only bound to exercise ordinary attention towards the slave, and was only liable for gross neglect.
    
      Denis for the plaintiff.
    As the defendant without any authority from the plaintiff, took the slave of the latter out of jail, he must be liable in damages for all the consequences of this unauthorised interference with his property.
    But, admitting that the intention of the defendant, and the circumstances of the case authorised this interference, then, as a negotiorum gestor, he was bound to act, not only with good faith, but with all the care and attention which the business he undertook required, and he was answerable for his neglect, si negotia absentis et ignorantis geras et culpam et dolum prœstare debes, L. 11, ff. de neg. gest. 2 Pothier, Contrats de Bienf, n. 46, 208. He certainly acted with great negligence, in taking the slave in his boat without securing him by irons or with a rope, after he was informed of his disposition to run away, and had been warned that he would escape unless he was well secured: and after he discovered that, what he had thus been warned against, had happened, it was his duty, to have delayed his departure, till every effort to retake the slave had been used, and every probable hope of success had vanished.
    Lastly, the defendant is bound to pay damages to the plaintiff on his special undertaking, evidenced by the deposition of Bonnell, whom he desired to be satisfied, as he had undertaken safely to deliver the slave to his master.
    
      Morel for the defendant.
    The slave which is the subject of this action was taken by the defendant, at the plaintiff's request. It is in evidence that the defendant brought a letter from the plaintiff to Bonnell, in consequence of which the latter brought the slave to the defendant. It is true, Bonnell warned him the slave would make his escape, if not properly attended to, but it is not to be concluded that thereby the idea was intended to be conveyed that there was a necessity of confining him in irons, or otherwise. The contrary is to be implied from the conduct of the person who gave this warning, since he took no precaution of this kind.
    If the defendant be considered as a negotiorum gestor, he is not liable for the misfortune of the plaintiff. The slave was so weak that he could hardly stand and was often obliged to step aside, being ill of a flux—it is not unlikely that he rose in the night, and as he had done before, during the day, fell into the river. A witness deposed, that the defendant had other slaves on board and took the same care of all.
    Whether the defendant acted as the agent, or the negotiorum gestor, of the plaintiff, is unnecessary to consider, for his liability is the same. When the negotiorum gestor has done his duty, he is not answerable for the fortuitous loss of the property of the absent person, for whom he acts. He is only liable, when the loss has happened through his negligence, his fault or his fraud. Partida, 5, 12, 30. Negotiorum gerentes alienum casum fortuitum prœstare non compelluntur, L. 22. Code de neg. gest. The principle is the same with regard to the agent: non amplius quam bonam fidem prœstare oportet eum qui procurat, L. 10, ff. 11.
    But, it is said the defendant is bound on a contract or promise. He declared he had undertaken safely to deliver the slave to his master. The proof of this contract or promise is drawn from the deposition of Bonnell—this deposition cannot avail the plaintiff : more than $500 are claimed for the value of the slave, therefore, the convention or agreement, ought to be proved by two witnesses at least. Civil Code, 310, art. 243. If it was, we would ask, what was the consideration of this promise?
    It is clear the defendant cannot be answerable, unless he has been guilty of some neglect. The disorder which afflicted the slave, when the plaintiff’s friend delivered him to the defendant in New-Orleans, forbade his confinement in fetters of any kind. After he was missed, the defendant did not pursue his trip, according to the testimony, for about one hour and one half: a time sufficient to hear from him, if it had been possible.
    Mathews, J. delivered the opinion of the court. The only question arising from this statement of facts is, whether the appellee has been guilty of such negligence in suffering the slave to escape, as to have made himself responsible to the owner in damages, under the rules of law governing quasi contracts. on which the court could decide in favor of the plaintiffs, consistently with the case of Ralston vs. Barclay & al.
    
    The plaintiffs have sustained no damage. There is a difference between the disappointment of rather sanguine expectations and such damages as give a right to an action at law. We contend that some evidence should have been offered to shew that some loss had been occasioned by the sale here complained of; that it should have been proved, that the price of this species of tobacco has been much higher in New York, or at least there was a probability that it would be higher at some future time.
    The plaintiffs had no right to limit the price absolutely. This consignment was made under an agreement entered into in New-Orleans between Stockton, Allen & co. and Gardner & Center, the agents of the defendants. By this agreement, Stockton, Allen & co. were to have an advance upon the consignment, but there was no agreement or consent on the part of Gardner & Center, that Ripley, Center & co. should be limited in the sale of this tobacco. This agreement was entered into by Gardner & Center as general agents of the defendants in good faith, and there is no pretence that they exceeded their authority. Of course, the defendants were bound, by their acts, and were bound to accept the bills drawn by them and given to Stockton, Allen & co. for this advance. If these bills had not been accepted, the holders, Stockton, Allen & co. could have recovered damages against the drawers. The agreement was on one part, to consign the tobacco, on the other to make the advance by drawing bills on New York. Nothing was said about limiting the price. Consequently any limit which would interfere with the consignee’s reimbursement, would have been in fraud of the agreement and not obligatory upon the consignee. Something has been said in the argument about the respectability of the house here; but when advances are made upon consignments, they are made upon the security of the goods, and not of the consignee.
   Martin, J.

delivered the opinion of the court. The plaintiffs’ counsel contends that he has shewn that the tobacco was their property, that Allen, Stockton & co. were their agents and consigned it to the defendants, restricting them to sell it at twelve cents and a half per pound, and that as they sold it for ten cents, the plaintiffs have lost two cents and a half per pound, which it is the object of the present suit to recover.

As no specific cause of action was alledged in the petition, other than the non payment of an undescript claim, the evidence ought, at least, to have established the plaintiffs’ right to a recovery, the general issue having been pleaded. That the plaintiffs were, in any manner interested in this shipment of tobacco, we are left to presume from the circumstance of Sterling Allen having, as their agents, made the necessary affidavit, in order to procure the writ of attachment. The conclusion is far from being strictly logical. He might have become their agent since the cause of action arose: even for the sole purpose of instituting the suit. Admitting him, however, to have been the plaintiffs’ agent ab initio, does it follow as a necessary consequence that every transaction and consignment of his is for the account of these, his principals? Are also all the transactions and consignments of Stockton, Allen & co. for the account of the plaintiffs? If they be not, how is this consignment of tobacco to be distinguished from the rest?

But admitting all these queries to be properly answered in the affirmative, it is far from being clear that the defendants have been guilty of any deviation from the orders of the consignees. These gentlemen gave no positive instructions, except that the sale of the tobacco should not be delayed, if twelve cents and a half could be obtained on its arrival. They do not desire it, that if that price cannot be obtained then, and, after waiting a reasonable time, there be no hope of obtaining that price, the consignees may not sell under it.

With these instructions the defendants complied. The tobacco was shipped in May, and no sale took place until October. At first, they had been directed to credit Gardner & Center with the net proceeds of the tobacco. Afterwards, the consignors procured these gentlemen’s draft, at sixty days, for the probable amount of these proceeds, on the defendants, who accused it. It is true, the consignors’ letter, accompanying the tobacco, communicated their hope that the article being of a good quality would sell well: and the restriction from delaying the sale, if on its arrival twelve cents and a half could be procured, is evidence of the consignors expectation that this price would be obtained. The draft, which was afterwards procured on the defendants, is presented by their counsel, as an evidence of the waiver of any previous restriction as to price. This court is not prepared to say that the draft could be considered as the waiver of any positive direction (if any had existed) not to sell below a certain price, but we are ready to say that when no positive restriction exists, a draft for the proceeds of the consignment, justifies a sale, in order to meet it, altho’ without it, prudence and the state of the market might demand a further delay.

No allegation of fraud or misconduct in the defendant is made. It is not shewn that the interests of the consignors would have been promoted by a delay, nor, that at any time, till the inception of the present suit or since a greater price could have been obtained.

It appears to us that the district court erred in giving judgment against the defendants. This being the case, that against the party intervening, as a claimant, cannot be supported.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for the defendants and claimant, and that the plaintiffs and appellees pay all costs in both courts.  