Denson v. Stewart , 15 La. Ann. 456 ( 1860 )

Land, J.

The defendant sold, for the plaintiff, a slave for the price of thirteen hundred dollars, but has refused to account and to pay to the plaintiff more than eight hundred and eighty dollars of the price, on the ground that, as he was authorized to sell the slave for $900, he is entitled to retain the balance of the price over and above that sum, in addition to his commissions for effecting the sale.

This suit is brought to recover the sum of $420, the balance of the price, and to restrain John Walters, in whose hands that balance is alleged to be, from paying it over to Stewart, who claims it as his own money.

The right of the plaintiff to recover the whole price for which the defendant sold his slave, less commissions for selling, is too clear to admit of any doubt or argument.

The specification of the price at $900 in the mandate to Stewart to sell the slave, was the mimmum price for which he was authorized to sell, and did not entitle Stewart to retain or claim the balance of the price demanded in this suit, in addition to his stipulated commission of $50 for selling the slave.

There is nothing in the settlement which took place between the plaintiff and Stewart, at the time the $880 were paid over, to extinguish the plaintiff’s right to recover the balance of the price.

The plaintiff was in danger of losing, daring the pendency of this suit, the balance of the price in the hands of John Walters, on account of the claim of Stewart and of his insolvency. The injunction was, therefore, properly granted. O. P. 303.

The plaintiff has failed to make out his case against A. G. Hitchcock, who was made a party defendant with Stewart.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed; and it is now ordered, adjudged and decreed, that the plaintiff recover of the defendant, H. T. Stewart, the sum of $420, less the sum of $50 commissions for selling the slave, with costs in both courts; and it is further ordered and decreed, that the plaintiff’s right to the balance of the price of the slave in the hands of John Walters, be recognized and enforced, and that the injunction issued in this case be perpetuated; and it is further decreed, that this suit, as to A. G. Hitchcock, be dismissed, at plaintiff’s costs.