Beauregard v. Case, 91 U.S. 134

Case, as receiver of the First National Bank of New Orleans, brought an action against Beauregard, May, and Graham, to p. 135recover the sum of $237,008.39, alleging that said defendants were commercial partners engaged in carrying on the New Orleans and Carrolton Railroad; and that the partnership account, which was kept in said bank in the name of Beauregard as lessee, was largely overdrawn, and the money applied to the use of the partnership; that May, while acting as president of said bank, and to make a nominal settlement, executed a promissory note, in the name of Beauregard, as lessee, payable to the bank on demand, for $40,000; and that said May also drew a bill of exchange on A. C. Graham in New York, in favor of the bank, for $125,000, and caused it, as well as the note, to be placed to the credit of said lessee. The petition also avers that the note was not paid, and that the bill of exchange was not stamped, and never forwarded for presentation, acceptance, or collection; that both of said credits were false, fraudulent, and fictitious; and that May acted with fraudulent intent, well knowing that the note had not been discounted by the bank, and that the bill would not be paid; and further averring, that, as the money thus obtained was used for the benefit of the partnership, the partners are liable therefor in solido.

There was read in evidence an act passed before a notary Pu ic, bearing date April 12, 1866, between said Beauregard p. 136and the New Orleans and Carrolton Railroad Company, by which the latter leased its track and appurtenances to Beauregard for the term of twenty-five years from the sixteenth day of that month. It contains sundry stipulations on the part of said Beauregard. The concluding part recites, —

eauregard requested the court to charge the jury, — f the jury shall find from the evidence that Thomas P. May p. 138is individually indebted to the First National Bank of New Orleans in the sum claimed in plaintiff’s petition for moneys obtained by him from the bank upon his sole credit and responsibility or by overdraft upon said bank, paid without the knowledge of the board of directors, and solely through the orders and control of said May as president or leading director of said bank; that said debt had matured at the date of plaintiff’s appointment as receiver, and when, as preliminary thereto, the bank was taken in charge by the agent of the Comptroller of the Currency; and that said May then owed no other debts to said bank; and that at said dates the said bank was indebted to said May in the sum of $315,779 for a balance of his general deposit account, which has never been paid; then the jury are instructed that the debt sued for in this case was compensated and extinguished by the said indebtedness of the said bank: which charge the court refused to give, but gave it with the addition, provided that said May was the sole debtor of the bank; to which refusal of the court to charge as requested, and to the charge as given, Beauregard excepted.”

The agreement of April 18, 1866, provided, on the one and, that Beauregard should obtain in his own name, but for t e joint account of the defendants, a lease of the railroad, and a e c^arge of and control and manage it at a designated inonthly salary, for their mutual benefit; and, on the other an, that May and Graham should furnish the money necessary, not exceeding for each the sum of one hundred and fifty ousand dollars, to carry out the enterprise, to be reimbursed p. 140with interest out of its annual net profits; and then declared that after the payment of the capital thus invested, and interest, the annual net profits, gains, and increase should be equally divided between the parties, share and share alike; and that all losses, from bad debts or otherwise, should be equally borne between them. It designated in terms the contract as one of partnership, and declared that it should continue from the date of the lease of the railroad for the period of twenty-five years.

The partnership belonged to that class of partnerships which is designated in the law of Louisiana as ordinary partnerships, as distinguished from those which are commercial. The latter are such as are formed for the purchase and sale of personal property as principals, or as factors or brokers, or for the car riage of personal property for hire in ships or other vessels. Ordinary partnerships embrace all other kinds, and they i er essentially from the former in the powers and liabilities of t e. several partners. That which is material in the present case is, that, in ordinary partnerships, each partner is only boun in viduallyfor his share of the partnership debts; but to tha extent a debt contracted by one partner, even without authon y from the others, binds them if it be proved that the P*^ershlP was benefited by the transaction. Civil Code of 187, a s. 2872, 2894. In the present case, there was evidence tending show that the moneys overdrawn by Beauregard were app to the purposes of the copartnership. The instruction pr - sented by his counsel assumed that they were thus use, p. 141if such were the case, there can be no doubt of his liability for the same jointly with his partners, unless by the terms of the contract with them they were to furnish the moneys used on their separate responsibility, and the bank had notice of the contract at the time. The addition placed by the court to the instruction was, therefore, a just and proper qualification.

e present case, for example, the defendant May might p. 142have set up against the claim of the plaintiff his personal demand against the bank, had he not previously disposed of that demand to the United States; but the defendant Beauregard could not set up that demand of May’s in compensation of the bank’s claim against him for his share of the partnership indebtedness, any more than he could set up a similar demand of a stranger. .

The verdict and judgment do, it is true, vary from the prayer of the petition. That seeks a judgment against all the defendants in solido for the whole amount of the partnership debt. It is based upon the hypothesis that the defendants were commercial partners, and were thus jointly and severally lia e for the whole amount of the partnership debts. But the facts alleged by the pleadings and disclosed by the proofs showing that the partnership between the defendants was not a commercial one within the law of Louisiana, but one there designated as an ordinary partnership, no verdict would have een legal that found any greater sum against each of the par ners served than his proportional share of the indebtedness. o of 1870, art. 2086. There was in this no such departure iro p. 143the issues made as to vitiate the verdict and judgment thereon. The reported decisions of the Supreme Court of Louisiana show numerous instances where similar verdicts upon like petitions have been sustained. Judgment affirmed.

This is an action of replevin, brought in the District Court for the Fourth Judicial District of the State of California, to recover certain hay cut from lands in Solano County, to which the plaintiffs claimed title in consequence of rights alleged to have been acquired under an act of Congress entitled “ An act to grant the right of pre-emption to certain purchasers on the ‘Soscol Ranch,’ in the State of California,” approved March 3, 1863. 12 Stat. 808. The plaintiff having died pendente Ute, his executors were substituted in his stead. The defendants denied the plaintiff’s title, and averred that they, 111 good faith and under color of title, held the land adversely to his pretended claim. The jury found a verdict in favor of p. 144the defendants for the value of the hay in controversy, with interest thereon. Judgment was for the defendants for $13,- 896.43. The plaintiffs appealed to the Supreme Court of the State, which adjudged “ that the judgment he reversed, and the cause remanded, with directions to the court below to proceed to try the cause anew, unless, within twenty days after the filing of the remittitur in the court below, the defendants shall file with the clerk of that court a written consent that the judgment be modified by striking out the damages therein awarded, and inserting, in lieu thereof, the sum of $8,989; and, upon such consent being filed, it is ordered that the judgment be modified accordingly, and also that it be made payable in due course of administration.” The written consent of the defendants having been filed in the District Court, the judgment of that court was modified as ordered by the Supreme Court.

But, in some of the States,-as, for instance, New York an Massachusetts, —the practice is for the highest cour, a p. 147judgment has been pronounced, to send the record and the judgment to the inferior court, where they thereafter remain. If in such a case our writ should be sent to the highest court, that court might with truth return that it had no record of its proceedings, and, therefore, could not comply with our demand. Upon the receipt of such a return, we should be compelled to send another writ to the court having the record in its possession. It has been so expressly decided in G-elston v. Hoyt, 3 Wheat. 246, and Me Gruiré v. Commonwealth, 3 Wall. 382. So, too, if we are in any way judicially informed, that, under the laws and practice of a State, the highest court is not the custodian of its own records, we may send to the highest court, and seek through its instrumentality to obtain the record we require from the inferior court having it in keeping, or we may call directly upon the inferior court itself. But if the highest court is the legal custodian of its own records, and actually retains them, we can only send there. This, we think, has always been the rule of practice, notwithstanding Mr. Justice Story, in delivering the opinion of the court in Grelston v. Hoyt, said that the writ might be “ directed to either court in which the record and judgment on which it is to act may be found.” 3 Wheat. 304. This was in a case where the judgment had been rendered in the Court of Appeals of New York, but, after its rendition, the record with the judgment had been sent down to the inferior court, there to be preserved in accordance with the law and uniform practice in that State. Strictly speaking, the record cannot be found in two courts at the same time. The original record may be in one and a copy in another, or one court may have the record and another the means of making one precisely the same in all respects; but the record^ proper can only be in one place at the same time.

In Webster v. Reid, 11 How. 457, the general language of Mr. Justice Story in Grelston v. Hoyt was somewhat limited; for, m stating the ruling of the court in that case, Mr. Justice Mcean gives it as follows : “ The writ of error may be directed to any court in which the record and judgment on which it is to act may be found; and, if the record has been remitted by o highest court to another court in the State, it may be rought by writ of error from that court.” To the same effect p. 148is McGuire v. Commonwealth, 3 Wall. 386. That was a case from Massachusetts. The suit was pending in the Superior Court of that State; and after verdict, but before judgment, certain exceptions were sent up to the Supreme Judicial Court for its opinion. That court subsequently sent down its rescript overruling the exceptions; and thereupon final judgment was entered in the Superior Court upon the verdict. This was according to the law and practice in Massachusetts, and the effect was to leave the entire record in the inferior court. Upon this state of facts, this court held that the judgment in that case was the judgment of the Superior Court, and that that court was the highest court in which the decision of the suit could be had, and, therefore, the only court to which the writ could go. But it was also held, that if the Supreme Judicial Court had rendered the final judgment, and had sent the judgment to the Superior Court, and with the judgment had sent the record, the direction of the writ to the Superior Court would have been proper. Green v. Van Buskirk, 3 Wall. 450, was also a New York case, and is to be considered in the light of the peculiar practice in that State. The record had been sent from the Court of Appeals to the Supreme Court.