Garland v. Estate of Scott , 15 La. Ann. 143 ( 1860 )

Merrick, C. J.

This suit is brought upon an instrument in these words :

“ Due Wm. H. Garland, Esq., nineteen hundred dollars, borrowed money. New Orleans, July 22d, 1853.

Ҥ1900. (Signed) Wm. S. Scott, U. S. M.

Chas. A. Labuzan.”

The defendant, the administratrix of Scott, denies, in her answer, the agency of Labuzan to borrow money and sign the due bill, and avers that he had no authority to perform said acts ; she denies, generally, each and every other allegation in the petition, and pleads the prescription of throe and five years.

The intestate, W. S. Scott, was the Marshal of the United States for the Eastern District of Louisiana, from 1849 to 1852, inclusive. Consequently, his office had expired when the due bill was given.

In 1849, Scott, as Marshal, appointed Labuzan as his principal deputy, and executed a power of attorney, wherein, among other things, he authorized him to make checks and draw money out of any bank or banks, to deposit funds and bills of exchange, &c., in any bank, and withdraw the same, and “ to adjust, settle and liquidate all accounts, and also to pay olf and discharge all claims and demands whatever, outstanding and existing against said constituent.”

Labuzan was released by the plaintiff, and his deposition subsequently taken, was offered to prove that he acted as the chief deputy of Scott; that he acted under the power of attorney ; that he continued to act nearly two years after Scott’s office had expired, in settling up the old business ; that he signed the note under the power of attorney; that the proceeds of the note were applied to the payment of Scott’s liabilities as Marshal, and in settlement of moneys collected under execution; that §1,200 were applied to an execution and §700 for rent ; that the money was borrowed at two several times, and all embraced in one bill of 22d July, 1853 ; that he managed the collections and disbursements of the office as chief clerk, and was the head of all the business.

This testimony was objected to on the grounds, among others, that no evidence could be received to add to the power of attorney, already offered in evidence, and that the evidence touching the uses which wore made of the money alleged to have been borrowed, was inadmissible under the pleadings ; that the plaintiff having declared upon a note, cannot be allowed to prove any right or demand beyond it.

It appears to us, that the testimony was admissible under the issue in this case. The defendant, in her answer, as already said, specially denied that Labuzan was the agent of said Scott, in borrowing money and in signing the due bill sued on, and averred that he had no authority.

This issue made it important to the plaintiff to show that the money was borrowed for Scott and applied to the payments of his debts.

Again : if it be assumed that the power of attorney is at all doubtful, the construction put upon it by one of the parties with the implied consent of the other, furnishes a rule of interpretation. C. 0. 1951.

The testimony having been properly received, we will proceed to consider the other questions in this case.

It is objected in this court, that the instrument sued on does not purport to have been executed by Labuzan as Scott’s agent. It is true that the usual words indicating agency, such as “ per,” “ by,” or “ for,” are not used in the due bill, but it is alleged in the petition, that it was so executed, and the answer impliedly admits that the instrument was intended to bind Scott through the agency of Labuzan, and the proof establishes the allegation in the plaintiff’s petition.

It is further objected, that the power of attorney did not authorize the agent to borrow money or acknowledge a debt, because it was not express and special, and because the power of attorney had ceased when the office of the Marshal, to which it had relation, terminated.

It may, perhaps, be doubted whether the terms “ to adjust, settle and liquidate all accounts, and also to pay off and discharge all claims and demands whatever, outstanding against said constituent,” with the acts of the parties under the same, is a sufficient proof of authority to sign the due bill. But whether it were or not, will not vary the result of the case, for the proof legally admitted in this case, shows that the plaintiff’s money enured to the benefit of the intestate. The case, then, presents this dilemma : the due bill was either signed with the authority of Scott, or it was not. If signed with his authority, his estate is bound by the terms of the due bill. If not, then the estate is bound, under the action de in rem verso, for money turned to the use of the intestate, under the equitable maxim “ Neminem opportet alteráis damno locitpletari,” (Dig. 50,17, 206, De regulis juris; ibid, 3, 5,10,) and under Articles 2278 and 2279 of the Civil Code, which are in these words :

“ 2228. Equity obliges the proprietor, whose business has been well managed, to comply with the engagements contracted by the manager (negotiorum gestor) in his name; to indemnify the manager in all personal engagements he has contracted, and to reimburse him all useful and necessary expenses.”

“ 2279. He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.” •

It being thus shown that the plaintiff has a cause of action, it remains to be seen whether it is barred by the plea of prescription of three and five years.

The plea of prescription of three years, cannot prevail, because if Labuzan had no authority to borrow money as alleged by the defendant, then the action is not an action for money lent, because Scott did not borrow the money, and tbe parties were in error, and for the same reason, it was not a matter of account, for there were no mutual dealings between Scott and the plaintiff', and the latter only intended to part with his money upon the security of the obligation of the former. See Taylor & Hadden v.

The action, according to the defendant’s version of the affair, arises out of a quasi contract, and like the action of mandate, partnership, or negoüoram gestorum, is prescribed by ten years.

If we consider tbe instrument executed by Labuzan, as a. valid instrument, as alleged by plaintiff, it is not prescribed, because it is but a mere acknowledgement of a debt, and not a promissory note. There is no express promise on the face of the instrument to pay money. It leaves the law to imply the promise from the indebtedness acknowledged. See Story on Promissory Notes, sec. 14; Ohitty on Bills, p. 130, eleventh American from ninth London edition.

As the instrument sued upon does not fall within the definition of a promissory note, it cannot be considered as barred by the Act of 1852, for statutes of prescription and limitation, are not extended from one action to another, nor to analogous cases beyond the letter of the law. Trop. 658; Linton v. Wikoff, 12 An. 886.

The supposition that the contract was immoral, cannot avail the defendant. For if Scott had illegally used money collected on execution, as surmised by counsel, it did not make a subsequent contract to borrow money to replace that so used, illegal.

The testimony of Labuzan is sustained by corroborating circumstances.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed ; and that there be judgment in favor of the plaintiff against the said defendant, in her capacity of administratrix, of the Succession of William S. Scott, deceased, in the sum of nineteen hundred dollars, with five per cent, interest thereon, from the 22d day of July, 1853, until paid, and to be paid in due course of administration. It is further ordered, that said succession pay the costs of both courts.

Duffel, J., took no part in this case.