Poydras v. Delamare , 13 La. 98 ( 1839 )

Rhislis, J..

delivered the opinion of the court.

The defendant, Madame Bonneau, on the 1st September, 1835, at Nantz, in the kingdom or France, drew an order in favor of the plaintiff or his order,'on the defendant, Gustave Delamare, her attorney in fact in Pointe Coupee, requesting him to pay on demand the sum of two thousand one hundred and eight dollars and twenty-four cents, beingthe amount of two certain obligations, and ■ of the balance of a settled account, which she owed the plaintiff. The order was presented to the defendant, Delamare, who refused to pay it: it was protested, but no notice was ever given to Madame Bonneau.

In the two obligations which were executed at Nantz, there is a stipulation on the part of Madame Bonneau, that she should pay les intéréts d’usage. In the account, the balance of which formed the residue of the amount of the order, ten per cent, is the interest allowed by the parties. In the order, Delamare is directed to pay the amount mentioned avec les intéréts stipulés aux dites obligations.

Where the principal, residing in Prance, draws on her agent in this state, to pay over a certain sum of money toa third person, with the usual interest, it amounts to nothing more than a promise to pay the amount with interest, on the presentation of the order at the place it is made payable. On the refusal of the agent to pay the order of his principal, the latter is alone hound, and is not entitled to notice, on such refusal. The agent having funds of his principal in his hands, and refusing to pay them over to the payee of his principal, is not individually bound. The neglect of the agent to obey the directions of his principal, does not render him liable to a third person. "Where an order is drawn on a general or particular fund for part only, it does not amount to an assignment of that part, unless the drawee consents to the appropriation by the acceptance of the draft.

We agree with the judge below in his opinion, which excluded parole evidence of the' usual rate of interest at Pointe Coupée. The rate of conventional interest must be fixed in writing, and testimonial proof of it is not admitted in any case. Louisiana Code, 2895. The amount given by the judgment to the plaintiff, principal and interest, is correct.

The order given in France by Madame Bonneau to her agent, amounted to nothing more than a promise on her part to pay the amount with interest, at the presentation of the order in Pointe Coupée. She was not entitled to notice on the refusal of her agent to pay, which was in point of fact, a default on her part.

Although Delamare had funds of Madame Bonneau in his hands, at the time of the presentation of the order, and refused to pay it, we do not think the plaintiff on the evidence can maintain his action against Delamare. The order was to him, as her attorney in fact; it is so stated in the petition, and we do not think that by his neglect to obey the directions of his principal, that he has rendered himself liable in this action to the plaintiff. If the order be considered in the light of an assignment of that amount of money, in the hands of a third person, we should not be able to enforce it against, the defendant, Delamare, at the instance of the plaintiff. It is well settled, that where an order is drawn on a general or particular fund, for a part only, it does not amount to an assignment of that part, unless the drawee consents to the appropriation by an acceptance of the draft; or an obligation to accept may be fairly implied from the custom of trade, or the course of business between the parlies as a part of their contract. Mandeville vs. Welch, 5 Wheaton, 277.

There is nothing in the evidence, or in the relations of these parlies, which will render Delamare liable under the operation of this principle. The judgment of the District Court is reversed, so far as it relates to Delamare, and affirmed as to the defendant, Madame Bonneau : the appellee to pay the costs of the appeal. '