sires to reserve.)
of a deceased actor, (or otherwise state explicitly any right which the actor rJ6.
PROOEDURE. Several of the cases indicate that it is proper to join the second employer as co-defendant, and to draw the injunction so as in· terms to forbid him to employ the chief defendant, 88 well 88 prohibit the latter from performing.(n} Whether the practitioner may have a ne exeat 88 well 88 injunction, see De RivajinoZi v. Oorsetti.(o) What action lies in behalf of an injured manager or other employer against a rival or competitor for inducing artists of his company or employes in his establishment to leave his service, BENJAMIN VAUGHN ABBOTT. see Bowen v. Hall.(p) New York, N. Y.
(n) Clarke v. Price, 2 Wils. Ch. 157; Lurnleyv.
1 De Gex, M. & G. 604; Burton v. Mar. shall. 4 Gill, 487 i Hamblin v. Dinneford, Ed"'. Ch.528.
(0) 4 Paige. 264; Sanquirico v. Benedetti, 1 Barb. 315; Hayes Y. Wllilo, 11 Ann. Pro (N. S.) 167. (1') 20 Alu. L, Reg. (N. S.) ii78, and note, Id. 687.
(Oircult Court, E. D. Louisiana. February, 1883.)
3073. Transactions regulate only the differences which appear clearly to be com* prehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed, and they do not extend to differences which the parties never intended to include in them. The renuneiation, which is mltde therein to all rights, claims, and pretensions, extends only to what relates to the differences on which the transaction arises. La, Uiyil Vode, art. 3073. 2. W A:lR"NTY. Wherever there is a sale, or an exchange, or a giving in payment of property, unless waived by the contract, there is an implied warranty that the person so selling, or exchanging, or giving 1'n payment is the owner of the thing sold, exchanged, or given. The salDe rule prevails in case of a settlement between debtor and creditor where property wholly outside of the differences between the parties is given in payment. Davia v. Lee, 20 La. Ann. 248, distinguished. Wright v. 13 La. Ann. 413, followed.
TRANSACTION OR COMPROMISE-LA. CIVIL CODE, ART.
On Rule for aNew Trial. About the facts in the case,. as developed by the evidence on the trial, .there can be no dispute. The following maJ be taken as a full and fair statement:
to the walt the firm now represented by plaintiff had dealings with the firm of Copes & Phelps, of which defendant is now the representv.tive,
'Reported b:rJoseph P. Hornor, Esq., ot the New Ol'leans bar.
consisting in the consignment to the latter firm ·for sale of large quantities of hoop-iron and clasps for cotton ties. 'fhe last lot conBigned, just prior to hossent without previous order, and tilities, ,amounting to· a'po\lt$6,OOO, did not give full satisfaction. The were account ofplatnW'f's. to March 15, 1861, sho\yed, balance Matters remained in abeyance durdue frOin Copes & Phelps of ing the wal'. Immediately following peace, about J:une10, 1865, the agent Qf plainti:fr:s firm appea,rl}d Orleans to settle affairs. with Copes. & Phelps. The account then to be over $12,000, four years' intllrest. After negotiations, a settlement was reached to the effect that Copes & Phelps released plaintiff's firm from all reclamations for inferior quality of goods, and plaintiff's finn received from Copes & Phelps, in full of .all acounts,Cash, · · 83,000 Five railroad bonds of the Vicksburg, Shreveport & Texas Railroad Company for · · · 3,000 Six certificates of Texas land-scrip, 640 acres ea., 3,200 Copes & Phelps' note, dated New Orleans, June 15, 1865, at 6 mo., 1,500 Copes & Phelps' note, dated New Orleans, June 15, 1865, at 1 yr., 1,500 $12,200 At this time the firmot Copes & Phelps were not in l\ flourishing condition, though the above did not constitute aU their assets. The railroad bonds specified rllmained in piilointiff's hands., without suspicion of their validity, or of anydefeati:ve title to them, until near the close of the long litigation in relation to the Vicksburg, Shreveport & Texas Railroad, when, to the surpriseof both: .parties, the bonds were discovered to be worthless, not being negotiable, and having never been issued by the company, but having been stolen frofn the vanltsof the company during a raid by the federal forces on the town of Monroe, in 1864. The plaintiff, on this discovery, notified the defendant, ar.d thereafter tendered him the bonds, demanding, in lieu thereof, the amount for Which they had been received in payment. 'fhe issue in this suit.is as to Whether the defendant is bound to make the plaintiff good.
John II. Kennard, W. W. Howe, and S. S. Prentiss, for plaintiff. II. D. Ogden, for defendant. PARDEE, J. The theory of the plaintiff is that the bonds were given in payment, and that as the title has failed the defendant is bound on his implied warranty. The defendant olaims that the whole lIettlemeut amounted toa transaction' and compromise, and that . therein no warranty of titles was implied, as there was no concealment or fraud. The question in the case is one of law, and the jury has decided it in favor -of the defendant.· Is the decision correct? ' The defendant relies on article 3083 of the Revised Civil Code of Louisiana, which reads: ..
I' Where parties have compromised generally on aU their differences which they might have had with one another, the titles which they then know noth· ing of, and which were afterwards discovered, are not s' cause of rescinding the transaction, unless they have been kept concealed on purpose by the deed of one of the parties. But the transaction becomes void if it relates only to an object upon which it is proved by the titles newly discovered that one of the parties has no right at all."
There is no qoubt that the parties compromised generally on all their differences, which were as to the amount due and what should be given and received in payment. This compromise wa.s reduced to writing, as required by article 3071 of the Code. For all the matters all the differences settled, this compromise should have "a force equal to the authority of the thing adjudged." Rev. Civil Code, 30'78. But the matter in issue here was not involved in that compromise. The ownership of the five bonds was not a between the parties at that time. Copes & Phelps held themselves out as the then owners of the bonds, with the power, to transfer them. No doubt of this ownership then existed on either side. There was nothing to compromise about it, no more than B.sto the oompromise. Can ownership of the money paid over u,nder thE'> it be contended that Copes, & Phelps might have paid over oounterfeit money and then shielded themsel-res under the compromis:e? It seems to me that article 3078 of the Code applies ,to this case:
" Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be therJecessary coni;lequence of what is expressed: and, they do not extend to diffeJ,"ences Which tbeparties nf;ver intended to include in them. 'fhe renunciation which is made therein to all rights, Claims, and pretensions, extends only to what relates to the dillerenc6i> on which the transaction arises."
It is not pretended that the title or ownership of the bonds on the part of Copes & Phelps was in any way !Io difference comprehended in the compromise by the intention of the parties as made and expressed, nor does it seem to me to be a necessary consequence of what was expressed. It is well settled under Louisiana law that wherever tb'ere is a sale, or an exchange, or a giving in. payment, ofprop·erty, unless waived by the contract, there ilJ ,an implied warranty that the person so selling, or excha.nging, or giving in payment is the owner of the thing sold, exchanged, or given., . Rev. Civil Code, arts: 2501, 2569, 2667.
That a. different rule shoul,d prevail in case of a. settlement between debtor and creditor, where property wholly outside of the differences between the parties is given in payment, is neither in accordance with reason or the law, as I understand either. The defendant urges strongly as applicable here the view of the law taken by Justice BRADLEY in the case of Chapman v. Wilson, 5 FED. REP. 305, some time since decided ill this court. As I, understand that case it was entirelydifferent in its facts from this. Warranty was expressly waiveri in regard to the thing given in payment; and the invalid thing, the subject of contest, was a worthless collateral security. The case of Davis v. Lee, 20 La. Ann. 248, also cited, was a genuine case of transaction and compromise. The svllahllfl shows how little it bears on this case.
" When severa1 parties having interest in an estate enter into a transaction, the object of which is to end litigation and settle all matters· in dispute, none of the parties are bound in wananty to the others on account of the interest in real property therein conveyed."
The case of Wright v. Temple, 13 La. Ann. 412, appears to be a parallel case to this, and there it was held that "a transfer of an obligation of a third person in part payment or acquittance of a debt, the amount of which is ascertained by a settlement, is "not a compromise but a dation en paiement." , The verdict of the jury is against the law, and I am constrained to grant a. new trial. In charging the jury I was particularly careful to inform them that, in order to find for the defendant on the theory of compromise or tl'ansaction, they must find from the evidence that warranty of ownership must have been expressly waived or that the title or ownership of the bonds was one of the differences compromised. The jury may not have understood this instri.lction; if they did and followed it, then their verdict is wholly unsupported by the evidence in :the case; and a new trial should be granted on that ground. In granting a new trial I do not want to be considered as holding that in the ·transfer of the bonds in. this case there was any other warranty by Copes & Phelps than that of ownership or the right to transfer; Abd this leads me to say that perhaps the stipulated price at which they were taken in payment may not be the true rule in damages in this case. . If the· coll.ectibility of the bonds· was not warranted, it would seem more equitable to require fr6m Copes & Phelps the value they have had if, genuine; in other words, what plaintiff's firm would have realized in the foreclosure of the
BRANCH V. HAAS.
mortgage securing the bonds, if the bonds had been genuine, as both parties supposed. The hardship of this case leads me further to say that now transaction or compromise is the most appropriate remedy to apply to it. Let the verdict and judgment rendered in this case be set aside, and a new trial ordered.
and others v.
Court, M. D. Alabama. February. 1883,)
CONFEDERATE TO SELL AND DELIVER-SUIT FOR BREACH.
As the bonds of the confederate states have been declared illegal by the four-
teenth amendment to the constitution of the United States, a contract for the sale and delivery of such bonds at a rate per 1,000, entered into since the war, is void, and a suit for damages for a failure to deliver as promised can. not be maintained.
When a contract is connected by its consideration with an illegal transaction, . a conrt of justice will not aid its enforcement.
At Law. Heard on detnurrer to plea. The opinion states the case sufficiently. Bragg J; Tlwrington, for plaintiffs. Rice J; Wiley, for defendant. BRUCE, J. This suit is brollght for damages for the breach of a contract of sale of 200 bonds, of the numerical value of $200,000, which the plaintiffs allege they purchased of the defendant at the rate and priee of four dollars per thousand, to be deliV'ered to tiffs by the twenty-ninth day of October, 1881, which the failed to do, to the 'damage of the plaintiffs in the sum of $1,500. The plea is the general issue, and a special plea to which the demurrer is dIrected, which alleges"That the contract sued'on was b'ased upon the sate by defendant for:filture delivery to plaintiffs of certkiuobligations, commonly called confederate coupon bonds, that were issued ,by a combination called the souther,u. states of America, in open and avowed renun<!iatioq of the authority pf tnegovem. ment of -the United States, and for the express purpose of making war against and overthrowiqg the lawfulgovernn;tent of the said United States; that !3,aid contract. which is the foundation of this suit, was an illegal tranflactioo, opposed to public polieiand void; anil that the consideration ot said eorttf,act is illegal, under the principles of public Policy, the constitution of the United StaLes, and the laws of congress. * * *..