Séré v. Faurès , 15 La. Ann. 189 ( 1860 )

Land, J.

A promissory note signed by H. A. Lee, for the sum of twenty-three hundred dollars, and payable nine months after date, to the order of Minor Kenner, and purporting to bo endorsed by tho payee and J. C. P. Wederstrandt, ivas sold to the plaintiff by the defendant, a professional stock and note broker of this city, without disclosing the name of his principal.

Before tho maturity of the note, L,ec, the maker, absconded, and the endorsements were discovered to be forgeries. The plaintiff offered to return tho note to the defendant, on the discovery of the forgery, and demanded from him the amount of tho check given for the price.

The note was received by the defendant from J. F. Clay, another broker, upon an agreement to divide the commission for selling it between them. Tho proceeds of the sale wore paid over by the defendant to /. F. Clay, less one-half of tho commission for soiling tho note.

The defendant was aware that Clay was acting in the capacity of broker, but did not know' for whom Clay was acting.

The judgment of the lower court is in favor of tho plaintiff for the sum of $2,088 40, the price paid for the note, with logal interest from judicial demand ; and the judgment is also in favor of the defendant over against J. F. Clay, called in warranty, for the sum of $1,044 20, with like interest from judicial demand, the same being ODe-half of the price paid for the noto.

The facts of this case, as between the plaintiff and defendant, are similar to those in the case Parlange v. Faurés, reported in 14 An., and the judgment between these parties, for the reasons stated in the opinion of the court in that case, is affirmed. But the judgment as between the defendant and the warrantor, J. F. Clay, is erroneous and must be reversed.

The legal effect of the judgment in favor of tho plaintiff, was to rescind the sale of the promissory noto made by the defendant to him. And the legal effect of tlio rescission of the sale, was to entitle tho defendant and warrantor to be reinstated in the position which they occupied, under the contract between them, prior to tho sale, with all the rights and remedies incident to that position.

Before the sale, the warrantor had no right of action against the defendant, for tho recovery of the amount of the note, nor any part of the same but his right was limited to a return of the note itself, which was held by the defendant as his agent or mandatary. And as the sale was rescinded, this is the only right which tho warrantor can claim and enforce against the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment as between the plaintiff and defendant be affirmed, with costs. And it is further ordered, adjudged and decreed, that tho judgment as between tho defendant and warrantor, be avoided and reversed. And it is now ordered, adjudged and decreed, that the defendant recover over and against tho warrantor, the sum of two thousand and eighty-eight dollars and forty cents, with legal interest thereon from judicial demand, less the sum of $11 50, amount of commissions for selling the note, with costs in both courts, reserving tho right of the warrantor to the note itself.