Bynum v. Armstrong. V, N. S. 159.

An agreement by which A sells cotton to B, on condition that the latter shall take it to another place, sell it, and pay over the proceeds to the creditors of the vender, is not a contract of sale.

SIXTH District.

MARTIN, J., delivered the opinion of the court.

The defendant is appellant from the judgment of the district court, which perpetuates an injunction, obtained by the plaintiff to prevent the sale of a quantity of cotton, on which the former had caused a fieri facias against F. A. Bynum to be levied.

The plaintiff claims the cotton, as part of the estate of Parham T. Bynum, of which he is curator, as having been purchased by his estate from Francis A. Bynum, according to the following document.

"Articles of agreement made and entered into between Francis A. Bynum and Parham T. Bynum, both of the parish of Rapides, witness, that F. A. B. has bargained, sold and delivered to P. T. B. and by these presents, sells, bargains, transfers and delivers to him, all his crop of cotton, which has been raised on his two plantations, the present year, the greater part of which is gathered, and some of it ginned and baled, and is contained in his gin and cotton house, on his upper plantation."

In consideration of which the said P. T. B. promises and obliges himself to pay to F. A. B. such price as he may obtain for it in New Orleans, after deducting freight and charges of sale: first paying out of the said price a debt due by F. A. B. in two judgments obtained against him by L. R. in the sixth district court for the parish of Rapides, and in the next place paying a claim of W. M. as far as 4000 dollars, against F. A. Bynum, and the balance of the price of said cotton to F. A. Bynum or his order."

The character of a contract is to be sought in the object the parties sought to accomplish, rather than in the appellation they gave it; in what is done, than in the words that are used.

Thus, there is no contract of sale, without a price in money, and if A. sell to B. a horse for a mule, which B. promises to deliver, there is no contract of sale, but one of exchange.

The object of the contract of sale is to make the vendee have the thing sold as his own, to give him a right to, an interest in it.

Here the intestate acquired no right nor interest in the cotton: he was authorised, and undertook to convey it to, and to sell it in New Orleans, and to pay the proceeds to the creditors of the owner and

[Bynum v. Armstrong.]

his order. The cotton was never at the risk of the intestate; had it been destroyed by fire, or sunk in the river, without his fault, the loss must have been his employer's F. A. B. Res perit domino.

The intestate incurred no other obligation than to use his best endeavors to convey the cotton to New Orleans, sell it, and pay the price to F. A. B. This did not make the intestate an owner, for the cotton was not at his risk, and he was neither to have any benefit or sustain a loss, in case of a rise or fall in its value. The profits and risks were all F. A. B's, who never ceased to be the owner. The cotton was therefore properly seized as his property.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and the injunction dissolved, the plaintiff paying costs in both courts.

Scott, for the plaintiff.

Thomas, for the defendant.

Stafford v. Stafford. V, N. S. 162.

SIXTH District.

Verdict allowed to stand, not being manifestly erroneous, when no question of law had arisen in the case.

Hunter v. Smith. V, N. S. 164.

SIXTH District.

The plaintiff's right to pray a discontinuance of his suit was recognised by this court in the case of Petit v. Gillet, 5 Martin, 20, and the court have heard nothing since, that militates against it. The court may itself order a dismissal. 3 Partida, 22. 3; 22. 9.

Martin v. Martin's Heirs et al. V, N. S. 165.

When a minor is absent from the state, service of citation in an action of partition may be made on his curator.

And if duly represented in that action, the judgment is conclusive against him until set aside.

SIXTH District.

PORTER, J., delivered the opinion of the court.

This is an action to recover from the heirs and sureties of a curator, the sum of 40,000 dollars, which it is alleged he received for the plaintiff, who was a minor.

The plea of res judicata which is offered as a part of the defence set up by the defendants, requires us to set out particularly the pleadings.

The petitioner states that he is one of the heirs at law of Abraham and Mary Martin, and as such was entitled to the sum of 40,000 dollars: that he was a minor from the death of his father and mother until the 20th November, 1823, when he became of age. That J. M. Martin was appointed his curator, and received the sum of 40,000 dollars, in money, from the other heirs of A. & M. Martin: and in property, which, without any legal authority, and without the approbation of the petitioner, he purchased at the sale of the estate of his father and mother, and which he retained in possession until his death, and is still in possession of his heirs. That the petitioner was not assisted by a curator ad litem in the premises, that he utterly disclaims all such acts and doings on the part of his curator, and that in consequence thereof the said J. M. Martin became liable, on his bond, to pay the sum already stated.

The petition proceeds with an enumeration of the property left by the curator, on which the plaintiff avers that he has a mortgage, and concludes with a prayer that the heirs of J. M. Martin, his sureties, and the other persons who have acquired part of the mortgaged property may be cited; that judgment may be rendered against the former for the sum claimed; and against the latter, that the property which has come into their hands may be held subject to said judgment, and sold to satisfy the same.

The persons thus made defendants put in separate answers, according to their different rights, and the views which each entertained of the defence he had to the action. That which first appears on the record comes from one of the sureties.

1. He pleads the general issue.

[Martin v. Martin's Heirs.]

2. That a regular classification of the estate and succession of John M. Martin was made by the judge of probates, of the parish of Rapides, at which the plaintiff was represented by his then curator ad bona, Robert Martin, who claimed for, and had allowed to the plaintiff, as a general privilege, the sum of dollars, which order is yet in force and unrepealed, and operates as the thing adjudged between the estate and the heirs of the said John M. Martin and the plaintiff.

3. That the petitioner has no claim in this suit, because a suit was brought in the probate court of the parish of Rapides, by the representatives of Anna Terrill, one of the heirs of Abraham and Mary Martin, for a partition of the succession of the said Abraham and Mary; and a settlement of accounts among the heirs. That in this suit the plaintiff, then a minor, was duly represented by J. S. Johnson, his curator ad litem specially appointed for that purpose, and a decree was given therein, which decree was appealed from to the district court, and there a final judgment was rendered, by which it appears that the petitioner has received more than his portion of the estate of Abraham and Mary Martin, and which decree being unreversed forms res judicata, and precludes the plaintiff from recovery in this

suit.

We will consider the last of these pleas first, and in order to ascertain whether it has the force and effect contended for, it is necessary to recur to the pleadings in the suit wherein the judgment offered in bar was rendered.

The plaintiffs in that case were the representatives of one of the heirs of Abraham and Mary Martin. In their petition they state, that by an order of the district court of the parish of Rapides, the parish judge of said parish was directed to proceed to the sale of the succession of the said Abraham and Mary; that pursuant to said decree, the whole of the estate was sold; and that, notwithstanding the sale, no final partition of the succession, or settlement of accounts among the heirs had yet been made. That at the sale, the property was principally brought by the heirs or their representatives; and that some of them had bought greatly over their proportion, and were in arrears to others.

They conclude by praying, that a partition of the estate may be made; that the heirs may be cited; that a curator ad litem may be appointed to the present plaintiff, and that the court would proceed "to the final partition of said estate among the heirs, and to a full, complete and final settlement of accounts between them; and that the court will decree to each, such sum as may be found due upon said settlement and partition.

The parties appeared in the court of probates, and the judge proceeding to make a settlement, charged each of the heirs with the amount purchased at the sale of the succession of Abraham and Mary Martin; among these charges, the present plaintiff is credited with 33,011 dollars, 50 cents, the amount bought by him, and his share is stated to be 34,146 dollars, 19 cents.

VOL. III.-42

[Martin v. Martin's Heirs et al.]

On the appeal to the district court, the same principles were adopted as the basis of its judgment, and the judge proceeds to state, that in order to a final settlement of the estate of Abraham and Mary Martin, judgment should be given in the manner therein stated. It is unnecessary to set out any part of it except that which decrees to the petitioner the sum of 2159 dollars, 16 cents.

The question then is, whether with this judgment standing unreversed, the plaintiff can recover in the present action?

Assuming for the moment, that it was regularly rendered according to law, our first inquiry must be, what were its effects on the minor? Before going into this question, however, it is necessary to state, that the heirs of J. M. Martin, who are sued now, were parties to the suit, and that their rights were pronounced on, as well as those of the coheirs.'

We have already seen that the avowed object of the action, was to obtain a partition and final settlement of the estate of Abraham and Mary Martin. This estate then consisted of the debts due to it from the sale of the property, and the greater proportion of these debts were due by the heirs themselves.

In making the partition the minor is charged with purchases to a large amount. Now the consequence of this most clearly was, to make him owner of the property for the price of which he was debited, and until that judgment is reversed he remains so. The purchase by his curator, confirmed by a judgment of the court, renders him to every purpose the proprietor of it. Nor can the consequences which result from these acts, be evaded by the argument urged by the counsel, that the legality of that purchase did not come in question in that suit. It came immediately and directly in question; for if the purchase had not been decreed to be legal, or admitted to be such by the curator, the judgment must necessarily have been in favor of the plaintiff for his whole share of the estate, instead of the sum of 2159 dollars, which was decreed to him.

Having thus ascertained in what relation the plaintiff stands to this judgment, and his rights under it, we proceed to inquire what is asked for in the present action. The petitioner states, that the purchases made for him at the sale of the estate of his father and mother, were contrary to law, that he disclaims them, and that he is entitled to have judgment against the heirs and representatives of his curator for the amount of said purchases.

If that prayer was acceded to, these proceedings, in relation to the rights of the minor would present very singular features. There would be a judgment of a court of competent jurisdiction, deciding that he was the owner of the property. There would be another which, leaving that judgment unreversed, would declare that he is entitled to the price of it. Now this cannot be, and unless we shall find on further inquiry that the first judgment is absolutely, not relatively, null and void, we are perfectly clear, the plaintiff cannot recover in this action.

The plaintiff contends it was absolutely null, and he has relied on