Amory v. Black , 13 La. 264 ( 1839 )

Rost, J.,

delivered the opinion of the court.

This action is instituted upon a contract, by which the plaintiffs sold to the defendant seven hundred barrels of flour, at four dollars and fifty cents per barrel, on condition that the flour should be taken to New-Orleans by the defendant, and sold by him on joint account; the plaintiffs to receive one half of the profits and to bear one half of the losses. The signature of the defendant to the agreement is admitted, and it is proved that the flour was delivered to him; that he took it to New-Orleans, and that it was sold at a profit of two thousand six hundred and forty dollars, one half of which the plaintiffs claim.

The defendant pleaded the general issue, and want of amicable demand. Judgment was given against him in the court below, and he appealed.

The appellant has filed the following points :

1st. That there was no contract, because the document offered as evidence of it was not signed by the plaintiffs, and because the flour had been delivered and paid for, several weeks before its date.

2d. That the evidence of M‘Keever and Wm. Onyet had been improperly admitted, inasmuch as the plaintiff's sued upon a written contract.

3d. That no amicable demand had been made.

4th. That the judgment of the District Court assigned no reasons.

The acceptance of the plaintiffs need not be expressed ; it results clearly from the fact of their sending Patrick M‘Kee-ver down with the boats, as supercargo, agreeably to the stipulation of the contract. The flour was already delivered, and they thus performed the only act required from them. The fact that (he flour had been delivered, and the money paid by the defendant, before the act upon which the plaintiff's sue was signed, cannot affect its validity; it appears by that instrument itself, that the contract which it evidences had been made at the time of the sale of the flour, and the fact that it was not reduced to writing, for some days after, is immaterial.

Although pa-riouxim'issiMeto prove a written contract, yet it .win be received done by^the par-ofR1"1 exeeutlon The amicable ded upon the that'if'made'before suit, the fendant would pay and save no^am^cabie'de-mand has been first made, if upon service of ci-fendañt ^coml plies with the ttaonr the plaintiff must pay the otherwise if he todefen'ddmaetion and judg-gainst him? &

2d. The testimony of M‘Keever, and ffm. Oñyet, was properly admitted. It doés not prove the contract, but only acts ^one by the parties in execution of it.

3d. The -judgment assigns no reasons, and must, therefore, J ° ° be reversed.

. 4th. The amicable demand was not proved, and as the waat 0f ú is specially pleaded, we are compelled to notice it. r..Jr r The law requiring an amicable demand before the institu-hon of a suit, can have no other foundation than the presumption that upon that demand the defendant will satisfy the plaintiff’s claim, and' thereby save costs; and where no amicable demand has been made, if upon service of the cita-^on defendant complies with the prayer of the petition, costs incurred must be borne by the plaintiff; but if . , . . . ¶ . ' J. . n instead oí this, he comes into court to defend the action and judgment is subsequently given against him, the legal presumption which operated in his favor has ceased to exist, and we see no reason why he should recover any costs made after his first appearance.

^ *s’ fberefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is further ordered and adjudged, that the plaintiff recover fr°m lhe defendant the sum of thirteen hundred and twenty dollars, with the costs made in the District Court, after the first appearance of the defendant, inclusively ; the remaining costs in the District Court, and the costs of this appeal, to be paid by the plaintiff and appellee.