
    ZACHARIE & CO. vs. ROGERS & HARRISON.
    EiUTEItW Dxs.
    
      July, 1841.
    APPEAL THOM THE PARISH COURT POR THE PARISH AND CITT OP NEW ORLEANS.
    Where the owner of property places it in the hands of a third person, who makes advances on It by drawing a bill, the drawee and consignee cannot appropriate it to the payment of his debt against the owner, until the advance is paid.
    Drawees, who are under no obligations to accept a draft, bind themselves to pay it, when they receive the goods or property on which it is drawn.
    The acceptance of a draft, merely hy the receipt of the bill of lading, and the property on which it is drawn, completes the obligation of the drawee to pay it.
    This is \aa action to recover the balance of $2095,99 due on an account made up from a bill of exchange drawn on a shipment of sugar, which was dishonored by the defendants, by being protested for non-acceptance ; although afterwards paid in part by them as drawees. The plaintiffs claim the balance with the expenses, interest and costs.
    The defendants pleaded the general issue.
    The facts of the case are briefly these. In 1827-8, the plaintiffs and one J. B. Moussier made an arrangement, by which the former were to make some advances to the latter on his sugar crop. This was done by shipping the sugar to the defendants in Richmond, Virginia, and drawing a bill on them to be met by the .proceeds. The bill was drawn at New Orleans on the 20th February, 1828, at 60 days sight, for $11,000, and sold to the U. S. Bank, and forwarded to Richmond for acceptance. The day before the date of the bill of exchange, the plaintiffs took a bill of lading for 250 hogsheads of sugar, shipped by them, but “ for account of J. B. Moussier,” and consigned to the defendants, of which advice was given to the latter. The defendants, in their letter to plaintiffs, dated the 14th March, 1828, in reply, say, “ we have been several days in receipt of your favor of the 8th ultimo, and now acknowledge the receipt of your letter of advice of draft upon us for $11,000, which draft has been presented, and we are sorry to say, under the circumstances, we have been compelled to allow it to be noted for non-acceptance. Two mails have now arrived and no invoice and bill of lading have appeared. We fear you may think our course in this transaction has been rather too strict, but if' you think dispassionately of the case, we think you cannot condemn us, as the bill of lading ought to have been forwarded as soon at least as the draft; and so many accidents have occurred in our correspondence with Mr. Moussier that we are afraid to put ourselves in the power of any uncertainty —“ you will perhaps say that our respect for your signature ought to have induced us to accept and look to you for indemnity in case any accident; but the noting of a draft is not like a protest; and of which we have given a full explanation to the holder, at this office ; assuring him that we-are sure that unless some accident has occurred which you did no(. foresee . transaction is entirely regular, and that as we expect, we receive a hill of lading for the amount of property intended to he shipped us, we shall forthwith accept yQUr fa-aft, ¿fa refusal of which has given us great pain, hut we trust will not he complained of hy you.”
    On the next day, the 15th March, the defendants wrote again as follows : “ Since we wrote you yesterday the ‘ Aspa-sia’ has arrived at our wharf, and we have made a partial examination of the sugar, and though the quality appears fair and good, yet it does not justify Mr. Moussier’s authorizing so heavy a draft on it, and will not, we are convinced, pay the amount due us, and'your draft also ; under these circumstances we are compelled to allow the hill for $11,000, to remain under note for protest, until we can ascertain whether we can, with safety accept it. We are sorry it had not been for 7 or 8000; under which circumstances we would with pleasure have accepted it. Fifty hogsheads are advertised for sale on Monday, and should the quality and price justify us in accepting your draft, which will make an advance of $16,000, we shall certainly protect you ; and let what will happen, you may rely on our making the best of it, hut our market is so completely glutted that we can hardly expect to get a price sufficient for it to cover your draft.”
    The defendants proceeded to sell the sugar and rendered an account of sales, which after deducting-the amount of Mr. Moussier’s account, previously owing to them, left a balance, after payment of charges, of $9,100, which was applied to plaintiffs’ draft. This still left a final balance due on the draft of $1900, besides interest and expenses, which are the object of the present suit.
    The parish judge was of opinion the defendants were not liable, and from judgment in their favor, the plaintiffs appealed.
    
      BtrawhriUge, for the plaintiffs and' appellants.
    
      
      Grymes, for the defendants.
   Martin, J.

delivered the opinion of the court.

The plaintiffs allege that they advanced a large sura Of money to one Moussier, for which they were to he re-imbursed out of a large parcel of sugars, to be shipped to and sold by the defendants ; that they received the consignment of sugar and assumed to pay the plaintiffs’ drafts thereon ; hut in violation of this engagement they only paid a part of said draft, leaving a balance of $2,095,99, which they unjustly detained. The defendants pleaded the general issue. There was judgment for the defendants and the plaintiffs appealed.

The facts of the case appear to he these. On the 14th March, 1828, the defendants advised the plaintiffs that they had been compelled to note their draft for $11,000, for protest; because neither the invoice of sugars or bill of lading had as yet been received; assuring them however that on the arrival of those documents the draft would be accepted.

The bill of lading and invoice of sugars themselves soon af-terwards arrived, and were received by the defendants, who paid from their proceeds in part discharge of said draft the sum of $9,100. The plaintiffs claim the balance with interest.

The counsel for the plaintiffs contends that the defendants’ letter of the 14th March, 1828, contains a eondilional accceptance, which became absolute on the arrival of the invoice and bill of lading; and if necessary still more so, on the arrival of the sugar, and the disposal of it by the defendants.

The defence of the appellees, which was sustained by the parish court, is, first, that the plaintiffs were merely the agents of J. B. Moussier, who was the owner, and for whose account the sugar was shipped.

2. That the defendants were under no obligation to accept the plaintiffs’ draft for $11,000.

3. That having paid all the funds they had in their hands belonging to Moussier, they were discharged; having correctly charged him with the balance which he owed them.

Where the owner of property places it in the hands of a third person who makes advances on it by drawing1 a bill, the drawee and consignee cannot appropriate it to the payment of his debt against the owner, until the advance is paid.

Drawees, who are under no obligations to accept a draft, hind themselves to pay it, when they receive the goods or property on which it is drawn.

* The acceptance of a draft, merely by the receipt of the bill of lading and the property on which it is drawn, completes the obligation of the (drawee to pay it,

I. The parish court, in our opinion, erred. Moussier, the owner of the sugar, had placed it in the hands of the plaintiffs who were to be paid for their advances to him, out of its proceeds ; and for that purpose consigned it to the defendants for sale. The draft in question was drawn on this sugar under the arrangement made with Moussier.

II. It is true the defendants were under no obligation to accept the plaintiffs’ draft, until they hound themselves to do so, when they received the invoice of the sugars and hill of lading.

III. If the defendants had a claim against Moussier, to which they thought the proceeds of the sugar ought to be first applied, they should have informed the plaintiffs of it, and refrained from a promise to accept the draft. The acceptance of the draft by the receipt of the bill of- lading and the invoice of the sugars, completed the obligation of the defendants to pay it. The plea of prescription cannot avail defendants, as this is not a suit on a hill of exchange.

It is therefore ordered, adjudged and'decreed, that the judgment of the Parish Court be annulled, avoided and reversed ; and proceeding to give such judgment as in our opinion ought to have been rendered in the court below: It is ordered, adjudged and decreed, that the plaintiffs do recover from the defendants, Rogers & Harrison, the sum- of nineteen hundred dollars, with legal interest from judicial demand, with costs in bQth courts.  