Lesseps v. Wicks

Buchanan, 3.

The defendant was sued by citation and sequestration, for certain inovables (household furniture,) sold by hita to Robert Richardson, deceased, fbr a price ih cash. A bill of sale of said inovables, Under private signature, containing- air acknowledgment of the receipt of the price, ahd signed by defendant, Was offered in evidence by plaintiff, ahd rejected by the Bistrict Court, on the ground that the document Was not sighed by the vehdee, Robert Richw'dson,

There was judgment of nonsuit; and the case is beibre us, upon a bill of exceptions to the ruling of the court below, rejecting- the evidence above mentioned.

We think the court ei-red, both on general principles and oh the issue, as made by defendant’s answer.

As to the necessity for the signature of the vendee to .a hill of sale under *740 private signature, the appellee has relied in this court upon the authority of Duran ton. But the reasoning of that commentator, loco citato, lias reference to the Article 1825 of the Code Napoleon — an Article not copied into the Louisiana Code. That Article requires acts under private signature which contain synallagmatic conventions, to be made in as many originals as there are parties having a distinct interest.

In our law, a sale of movables may be made by parol, as well as in writing; but if the vendor have thought fit to reduce his acknowledgment of such a sale and of the receipt of the price to writing, under his signature, such written acknowledgment is surely good proof against him. The expression of Article 2289 of the Louisiana Code “beUoeen those who have subscribed it” is synonymous with “against those who have subscribed it;” and by article 2240, he against whom an act under private signature is offered, is bound to acknowledge or deny his signature, l'n fact, that is what the defendant has done in this case; for in his answer, after pleading the general denial, he goes on to plead specially “that the transfer mentioned in the plaintiff’s petition was not serious, and never intended to be carried into effect between the parties, viz: deceased and plaintiff; that no consideration for the furniture described in the petition of plaintiff, was ever given by deceased, and that the said furniture always remained in the possession of defendant, who has never ceased to be owner thereof.”

The second of these pleas waives the first — the general issue; and the contract being admitted, (that is to say, the execution of the written conveyance of the property to defendant,) the burden of proof is thrown upon the defendant to prove the simulation, which he alleges. A special plea always controls, as far as it goes, the general issue.

The case of Hill v. Maddox, 11 Ann. 511, cited by defendant, has no analogy to the present. In that case, an instrument having the form of a sale for cash, of articles of household furniture, and signed by the vendor, was not rejected by the court, but was held to be an informal pledge, and not a sale, by virtue of two other contemporaneous writings, which were given in evidence, and which explained the true nature of the transaction.

The only question that remains, is, whether the cause shall bo remanded for the purpose of giving the defendant an opportunity to make out by proof, the special defence pleaded by him.

It appears that defendant offered no evidence, and it is possible that ho may have written proof in the nature of a counter letter, which he did not deem it necessary to offer, on account of the ruling- of the District Court, rejecting the plaintiff’s evidence. If so, his neglect to offer such proof, can scarcely be imputed to him as a fault for which he must suffer. We will therefore give defendant the benefit of the silence of the record on this subject. But it is proper that we should add that the unvarying jurisprudence of this court does not allow a party to vary or destroy his own voluntary written argument., by any thing short of written evidence, which includes, under the decisions, answers to interrogatories on facts and articles. Williams v. Hood, 11 An. 115; McCall v. Henderson, 11 An. 210; Stratton v. Rogers, 11 An. 381; Semèré v. Semèré, 10 An. 705; Barry v. Louisiana Insurance Company, 11 Martin 632 ; Delahoussaye v. Delahoussaye, 7 N. S. 203; Prudence v. Bermodi, 1 La. 240 ; Rogers v. Hendsley, 2 La. 600 ; Maignan v. Gleises, 4 L. R. 4; Macarty v. Bond, 9 L. R. 350; Frost v. Bebout, 14 L. R. 108; Hacket, minors, 4 Rob, 299; *741 Groves v. Steel, 2 An. 482; Harkin's succession, 2 Ann. 926; Rachal v. Rachal, 4 An. 501.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that the cause be remanded, with instructions to the said court to receive in evidence the document mentioned in the bill of exceptions in the record; and that defendant and appellee pay the costs of appeal.