Chaffraix & Agar v. D. & J. D. Edwards , 26 La. Ann. 22 ( 1874 )

Howell,

J. The plaintiffs, commission merchants in New Orleans, and the factors of Dr. J. B. Wilkinson, a sugar planter in the parish of Plaquemines, injoin the sheriff and D. & J. D. Edwards, judgment creditors of said Wilkinson, from interfering with their possession and the sale and disposition by them of certain sugars and molasses shipped to them by said Wilkinson to be sold, and the net proceeds placed to the credit of said Wilkinson’s account with plaintiffs, for supplies ■and advances made by them and secured by mortgage. The defendants plead a general denial, admit the seizure under their judgment of the property in question as the property of their debtor, deny that any special instructions were given in regard to the shipment thereof, allege that if plaintiffs have any claim against Wilkinson they are protected by their mortgage; further that plaintiffs, under cover of their injunction, have obtained possession of said property and sold it for their own benefit, and they pray that the injunction be dissolved ;and for judgment against plaintiffs and their surety in soMdo for the •amount of their writ and damages.

From a judgment perpetuating the injunction the defendants have ■appealed.

The material facts are, that the plaintiffs were, in 1871 and 1872, the ■commission merchants and factors of J. B. Wilkinson, who owed them in April, 1872, about $18,000, evidenced by two notes secured by mortgage, at which date their payment was extended to first February, 1873; a pledge of other notes and another mortgage were given to secure the said indebtedness and the advances to be made for the crop •of 1873 to the amount of $12,000, the planter obligating himself to ship the crop of that year, and each subsequent year if necessary, to pay the said sums with interest and all commissions, expenses, etc., of shipment, sales, etc.; that in December, 1872, the shipment in question was made without any special instructions from the planter, the plain-stiffs receiving the bill of lading early in the morning of the day of its arrival; a few hours afterwards, on the same day, the sheriff of Orleans with & fieri facias from the parish of Plaquemines, in the suit of D. & J. D. Edwards v. J. B. Wilkinson, went aboard of the steamboat and seized the said sugar and molasses as the property of the said Wilkinson. Whereupon this injunction issued, the plaintiffs claiming the ■custody and control of said property to the exclusion of Wilkinson’s creditors and as exempt from seizure by them.

We think the property belonged to Wilkinson, the shipper, and that his creditors might seize it, subject to the rights of the consignees to be settled contradictorily with the seizing creditors, inasmuch as the consignees were the agents of the shipper and their constructive possession under the bill of lading, did not give them an ownership, nor exempt the property from the pursuit of the creditors of the owner, cither by actual seizure under' a fi. fa. or by the garnishment process. The latter mode is not exclusive. Either may be resorted to according to circumstances. C. P. 642.

Article 3247 (3214) C. C., gives a privilege to the consignee superior to the attaching creditor for any balance that may be due him, provided he has obtained possession or received a bill of lading. The language of this article plainly implies that the goods may be attached, and, as we have remarked above, a direct seizure by the sheriff may be made if he can take actual possession, the attachment not being exclusive of the direct seizure.

The conclusion seems to us to be clear that the injunction was not the remedy to which the plaintiffs were entitled, and that the sheriff" should have proceeded with the rule, leaving to plaintiffs and defendants to settle their respective rights to the proceeds.

Although the common debtor is not before us, there is evidence sufficient in the record, including plaintiffs’ account against him, to show that the right of the defendants to the proceeds of the property seized is superior to that of plaintiffs, who by their proceeding are liable,, under the evidence, to the defendants for the amount thereof in their hands.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of D. & J. D. Edwards dissolving the injunction herein, and that they recover of plaintiffs and their surety, S. Cambon, in solido, the amount of the judgment against Dr. J. B. Wilkinson, injoined herein, to wit: $2551 12, with interest and costs therein allowed, not to exceed $8800, the value of the property of said Wilkinson in the hands of plaintiffs as alleged by them. Costs of this suit in both courts to be paid by plaintiffs.