Miller v. The New Orleans Canal and Banking Company.

an indefinite power, to do whatever may be conducive to the interest of the principal. Art. 2964. And when powers are granted to persons exercising a profession, or performing certain functions, the authority is to be inferred from the functions which the mandatary exercises. Art. 2969. The contract of mandate may be tacit as well as express; and the acts of the principal are to be fairly and liberally construed towards those who contract with the agent, (7 Mart. N. S. 143; 11 La. 288,) and also towards the agent. Whenever the law requires a contract to be in writing, the power to execute it must be in writing also; but when this is not absolutely necessary, the power may be given in the simplest form, and the intention of the parties be gathered as much from their acts as from their agreements. When the power is given in writing in express terms, it cannot be enlarged by parol evidence. Story on Agency, p. 75, 79. But it is a general rule, where authority is given by informal instruments and confers general powers, that they are to be construed with more liberality than more formal and deliberate instruments. Ibid. p. 77, 82. The authority must also be construed as to its nature and extent, according to the force of the terms used, and the objects to be accomplished. Ib. § 83. In this case, the contract might have been by parol and still obligatory, and we do not think the authority to make it must have been express and special, but that it may be inferred from the circumstances and objects the parties had in contemplation.

We proceed now to notice several bills of exceptions in the record. The first is to the opinion of the judge admitting the contract sued on to be read as evidence, before the authority of Cameron to make it was proved. The objection was, we think, properly overruled. The plaintiff had a right to have his contract with the alleged agent of the defendants, laid before the jury; but if an authority to make it was not afterwards shown, or properly inferred from the testimony, it would be of no avail. It was a link in the chain of evidence properly received, but of no force in itself, until connected with something else.

The next bill is to the opinion of the court, permitting the sheriff to amend his return as to the service of the interrogatories on the defendants. The plaintiff wished to take the depo

Miller v. The New Orleans Canal and Banking Company.

sition of Cameron, and had his interrogatories served on the defendants in the manner directed by law; but the sheriff made a mistake in describing the person on whom they were served. The defendants' counsel objected to the deposition being read on this ground, when the counsel for the plaintiff moved, that the sheriff have leave to amend his return, to which objection was made, that it was too late, more than four months having elapsed, and the cause being then on trial. We think the judge did not err in permitting this amendment. It is a well settled principle, that a sheriff should be permitted to amend his return so as to make it conform to the fact, whenever it is called in question; and it is not too late on the trial of the case.

During the trial, the plaintiff offered in evidence the deposition of Simon Cameron, to prove what powers were confided to him by the defendants, and that he had made other contracts which the directors of the bank were informed of, and had approved and discharged. To this, the counsel of the defendants objected, on the ground that Cameron could not be a witness to prove the extent of his agency, although released by the plaintiff from any liability to him. The court sustained the objection and rejected the deposition, to which the plaintiff excepted. We think the court erred. Many cases have been decided by this court, recognizing the competency of agents to testify in cases in which their principals were parties, and the acts of the agent involved. 13 La. 216. 9 La. 52, &c. The deposition ought to have been admitted, and the weight it was entitled to, left to the jury. 2 Starkie, 767 to 769.

In consequence of the erroneous charge of the judge to the jury, and of their finding a verdict in obedience to it, we must reverse the judgment and remand the cause for a new trial, it not being in cur power to pass upon the case as now presented to us.

It is ordered and decreed, that the judgment of the Parish Court be annulled and reversed, and the cause remanded for a new trial, with instructions to the judge to admit the deposition of Cameron in evidence, unless some other objection exists to its admissibility than is stated in the bills of exceptions decided on; and in his charge to the jury to conform to the principles of law herein stated, and in other respects to proceed according to law; the defendants paying the costs of the appeal.

Brode v. The Firemen's Insurance Company of New Orleans.

HENRY BRODE v. THE FIREMEN'S INSURANCE COMPANY OF
NEW ORLEANS.

A garnishee cannot interfere, as to the merits of the case, between the plaintiff and defendant.

No express authority in the charter of a corporation is necessary to authorize it to make a promissory note, in the course of their legitimate business.

A creditor who has obtained judgment against a corporation and issued execution thereon, may propound interrogatories to any stockholder, under the 13th section of the stat. of 20 March, 1839, to ascertain whether the whole amount of his stock-subscription has been paid in; and if any portion be unpaid, it may be seized by the creditor in satisfaction, as far as it will go, of his judgment. The fact of other stockholders having paid less than their proportion, is a matter to be settled between the stockholders themselves.

APPEAL from the Commercial Court of New Orleans, Watts, J. Lowndes, for the plaintiff, cited stat. 20 March, 1839. Cucullu et al. v. The Union Insurance Company, 2 Robinson, 571. Kennicott and Frazer, for the appellants.

MORPHY, J. The plaintiff having obtained a judgment against the Firemen's Insurance Company of New Orleans, as drawers of a promissory note for $741 64, to his order, sued out a writ of fieri facias, which being returned nulla bona, an alias writ issued and interrogatories were propounded to some of the stockholders of the company, under the 13th section of the law of 1839, to ascertain the amounts respectively due by them to the defendants, on their subscription to the capital stock. To these interrogatories Taylor & Hadden answered, that, in January, 1843, they became stockholders for thirty shares in the Firemen's Insurance Company, which they still own, and on which they had paid $1164 98, being thirty-eight dollars, and sixteen cents on each share of fifty dollars, which was $319 98 more than had been called in, and more than had been paid by the other stockholders, and that, consequently, the company owed them this amount. On these answers, the garnishees, Taylor & Hadden, were decreed to pay the balance of their subscription, to wit, $11 84 per share, making $355 20. They have appealed.

Their counsel has urged, that the defendants had no right under their charter, to make and issue promissory notes. Even if

Brode v. The Firemen's Insurance Company of New Orleans.

this were true, it would furnish to the appellants no just ground of defence against the claim of the plaintiff, as it has now ripened into a judgment from which no appeal has been taken. They have moreover, no right to interfere with the merits of this case, as between the plaintiff and the defendants; but if it were competent for them to raise this point, we see nothing in the charter of the company to sustain it. When, in the course of their insurance business, the company have incurred losses, and have not the cash on hand to meet it, why should they not give a written acknowledgment of their liability, and promise to pay the debt at some future period? It is believed to be the way in which most of the insurance offices settle their losses, for the payment of which their policies generally stipulate some delay. The note given to the plaintiff, being a contract made by the defendants in the course of their legitimate business, no express authority in their charter was necessary to enable them to make it. Angel & Ames, 145.

The appellants further urge, that the plaintiff has mistaken his remedy, and that the directors of the company ought to have been compelled, by a writ of mandamus, to enforce payment from the stockholders of a sum necessary to pay the debts of the corporation. This ground of defence has been considered and disposed of in the case of Cucullu and others v. The Union Insurance Company, 2 Robinson, 571. The appellants having paid on the amount of their stock only thirty-eight dollars and sixteen cents per share, are liable for the balance. If other stockholders have paid less than they have, it is a matter to be settled between themselves; but as regards third persons, each stockholder is liable for the full amount of his subscription, which, being due to the company, can be seized by its creditors.

Judgment affirmed.

Kirkman and others v. Bowman.

JAMES KIRKMAN and others v. WILLIAM BOWMAN, Owner of the Steamer Paragon.

A bill of lading is only prima facie evidence of the truth of its contents, as between the parties.

The second clerk of a steamer, may execute on behalf of the boat, a bill of lading in the ordinary way, and his receipt for merchandize delivered on board, will be binding; but to make a special contract—as to bind the boat for articles not delivered on board, his authority must be shown.

APPEAL from the Commercial Court of New Orleans, Watts, J. This was an action to recover from the defendant as owner of the steamer Paragon, $28,000, the value of 850 bales of cotton, al leged to have been received by defendant to be delivered to plaintiffs, as will appear from a bill of lading annexed to the petition. The defendant answered by a general denial, averring that he had delivered to plaintiffs all the cotton he ever contracted to deliver to them; and by claiming $10,000 for freight of cotton, and for work and labor done, &c. There was a judgment below, in favor of the defendant, against the plaintiffs, for $3720 73, with interest, from which the latter appealed.

P. Anderson, for the appellants. The bill of lading must determine the rights and duties of the parties. It is a contract in writing, and its terms cannot be varied by parol proof. There is no ambiguity in it, and on all questions as to its meaning, it must speak for itself. 1 H. Black. 359. 8 Mart. 206. This bill of lading, however, like all other contracts, may be affected by parol, when, by reason of fraud or mistake, it varies from the agreement on which it was founded; but in such a case, the parol proof is not to ascertain the meaning of the contract, but to ascertain the meaning of the agreement; and then, if it be proved that the non-conformity of the contract with the agreement arose from fraud or mistake, the court will reform the contract, and enforce the rights of the parties according to the reformed contract.

It must be obvious, that such parol proof cannot be admitted under the general issue, but must be the subject of a special answer. At common law, the contract would prevail at law, and the power to reform it belonged to a court of chancery. Giving every latitude to a more loose or liberal practice, it seems to be going too far to admit a defence not disclosed by the answer, but which the answer obviously tends to conceal. 8 Mart. 206.

The judge below seems to think, that the parol evidence in this