A

V.

PPEAL from the Fifth District Court of New Orleans, Buchanan, J. SEATON Benjamin and Micou, for the plaintiff. Lockett and R. IIunt, for the SECOND MUNIappellants. The judgment of the court was pronounced by

ROST, J. The motion for a new trial in this case was improperly overruled, and the application of the defendants to have the case remanded for trial before another jury must prevail, so far as the question of damages and loss of profits resulting from the breach on the part of the defendants of the building contract entered into by them with the plaintiff, is involved. It is admitted that the verdict of the jury allowed $28,000 as damage and loss of profits, and that the balance of the judgment has been voluntarily executed, without prejudice to either party as to the question remaining open. The damages and loss of profits allowed are based exclusively upon the loose and speculative opinions of the witnesses, and upon estimates of supposed profits. The plaintiff's counsel argue that the difference between the amount he was to receive, and that which he was to pay, under the sub-contracts he had made for the building and materials, constituted the profits. Evidence of that description would open too wide a door to fraud, to be received as full proof. How can it be ascertained, without any evidence as to the value of labor and materials at the time, or as to the solvency of the sub-contractors, whether they would have been able to comply with their obligations, or to indemnify the plaintiff if they had not.

The jury had not before them the data necessary to make an estimate. When a contract is broken before the arrival of the time for full performance, and the opposite party assents to consider it in that light, and sues for damages, also before the time for full performance, as is the case here, the market value at the time of the breach, whenever there is a market value, is to govern in the assessment of damages. There being no market value in this case, the question of profits involves a minute inquiry into the cost of the materials, the expense of procuring and transporting them to the place of delivery, the amount of labor required for putting up the building, and the value of the wages of laborers and mechanics, the whole to be assessed at the time of the breach of the contract. Even with these data, the estimate of profits must be somewhat conjectural. But wherever this is the case, it is the province as well as the duty of the jury not to assess damages rigorously; but, on the contrary, to moderate them, so as to make allowance for any partial uncertainty that may exist. The nature of the proof required in cases of this kind has been thoroughly investigated by the courts of New York. Masterson v. Mayor of Brooklyn, 7 Hill, p. 62. Sedgwick on Damages, pp. 81 to 85-228 to 231.

It is ordered that the judgment, so far as it has not been voluntarily executed, be reversed, and the case remanded for further proceedings on the single question of damages and loss of profits resulting from the breach of the building contract entered into between the plaintiff and the defendants; the plaintiff and appellee paying the costs of this appeal.

CIPALITY.

BARELLI v. RIVIERE, Curator.

All personal actions, except those for which the law has provided a shorter term, are prescribed by ten years, if the creditor be present; and neither the nature of the debt, nor the mode of life of the debtor, can effect the rule. C. C. 3508.

A

PPEAL from the Court of Probates of New Orleans, Bermudez, J. Josephs, for the appellant. Soulé, for the defendant. The judgment of the court was pronounced by

ROST, J. The plaintiff claims the sum of $3,026 24, for a balance of accounts resulting from transactions between him and the deceased, which were closed on the 5th September, 1831. The petition alleges this claim to be the result of commercial transactions, moneys paid, and goods furnished by the petitioner for the benefit of the deceased. This statement is corroborated by the account annexed to the petition, upon which proof of the claim has been made. The only defence is the plea of prescription. It prevailed in the court below, and the plaintiff appealed. The citation in this case was served on the 14th of February, 1844, and it is satisfactorily shown that the plaintiff and the deceased had both resided in the State during more than ten years previous to that time.

The plea of prescription is resisted on three grounds: 1st. That the amount sued for resulted from transactions of a fiduciary character. 2d. That in consequence of the defendant's obscure and vagrant life, and of his intentional misrepresentations, the plaintiff was kept in ignorance of his place of abode. 3d. That if the deceased ever acquired prescription, he renounced it afterwards, and acknowledged the debt.

The two first grounds are untenable. All personal actions, except those for which the law has provided a shorter time, are prescribed by ten years, if the creditor be present; and neither the nature of the debt, nor the mode of life of the debtor, can affect the rule. C. C. 3508. If they could, from the plaintiff's own showing, his claim is an ordinary debt, and he might easily have ascertained the place of abode of the deceased. It is in proof that during the three years which preceded his death, he kept a cabaret near the St. Mary's market, and that his name was on the door.

The facts in support of the third ground are as follows; Johnson, a witness for the plaintiff, states that, in December, 1842, or January, 1843, being in company with the plaintiff, they met casually on the levée a man crippled and about fifty years of age. Barelli appeared very much surprised, and enquired why he had not called to see him. He answered, "I am so poor that I have nothing to give you." The plaintiff told him to call and see him, and that he would aid him if he could. After they left this person, witness asked the plaintiff what his name was, and the plaintiff stated his name was Aymard. Now, although it be true that a renunciation to a prescription already acquired may be implied from circumstances, those circumstances must be such as will carry conviction to the mind of the judge. The payment of the arrears of interest or of a portion of the debt, or the giving security for the whole amount, are circumstances of that class. The words, "I am so poor that I have nothing to give you," have no direct reference to the debt, and are far too loose and indefi

nite to make proof of the renunciation. The very identity of the person who uttered them with the deceased is only shown by the declaration of the plaintiff, which is not legal evidence, The alleged intentional misrepresentations of the deceased, and his statement to the plaintiff that he resided in Lafayette, when in fact he kept a cabaret near the St. Mary's market, so far from benefiting the plaintiff, raises a very strong presumption that he had no intention to renounce any rights he might have acquired by lapse of time, or otherwise. Judgment affirmed.

BARELLI

v.

RIVIERE.

JONES v. FELLOWES et al.

Where cotton seized under execution by consent of parties is shipped by the sheriff to fac tors residing in another parish for sale, and the latter accept the consignment with know. ledge of the capacity in which the sheriff held the property, they cannot refuse to pay over the proceeds on the ground of a claim for supplies furnished to the plantation on which the cotton was produced; nor can they question the sheriff's authority to send the property beyond his bailwick. Any privilege for supplies claimed by them must be asserted before the court under whose process the sheriff holds the cotton. In such a case compensation cannot take place; the parties not being indebted to each other. C. C. 2203.

A

PPEAL from the Fourth District Court of New Orleans, Strawbridge, J. Wray, for the plaintiff. Mott, for the appellants. The judgment of the court was pronounced by

SLIDELL, J. This is an action to recover the nett proceeds of certain cotton shipped to defendants, commission merchants, by the plaintiff, as sheriff of the parish of Caddo. It appears that the cotton had been seized by the sheriff under an execution, and, instead of a sale in the ordinary manner, he shipped it, by agreement of parties, to the defendants, with instructions to sell it and await his further orders. Such in substance is the result of the evidence. The defendants refuse to pay over the proceeds, on the ground of a claim for supplies furnished to the plantation upon which the cotton was produced.

The defendants when they accepted the consignment were aware that plaintiff held it as a legal custodian, and expected them to answer accordingly for the proceeds. If they were dissatisfied with the terms of the consignment, they should have rejected it. Having accepted it without reservation, they must carry out their contract by paying over the proceeds to the sheriff; and, if they have a privilege for supplies, must prosecute it before the court at Caddo, under whose process the sheriff holds. We do not think that, under the circumstances, the defendants have a right to raise the question of the sheriff's authority to send the property out of his bailwick.

This is not a case in which compensation can take place, because the plaintiff, the consignor of the property, and the defendants are not indebted to each other. The plaintiff represents, it is true, the owner of the plantation, who is the alleged debtor of the present defendants; but he also represents the seizing creditors. See Civil Code, art. 2203. Merlin, verbo Compensation, § III. Judgment affirmed.

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109

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49

CARLISLE . HOLTON et al.

Damages cannot be recovered by the owner of a steamer for injuries sustained by a collision with another boat, though the latter was greatly in fault, where the collision might have been avoided by ordinary care on the part of those in charge of plaintiff's boat.

Where a collision takes place between steamers engaged in racing, the owners of neither boat will be allowed to recover damages for any injury sustained, however gross the fault of those in charge of the other boat.

A

PPEAL from the Fourth District Court of New Orleans, Strawbridge, J. Randall, for the plaintiff, cited C. C. 2294. C. P. 1. Abbott on Shipping, p. 238. Story on Bailments, § 611. Lowry v. Steamer Portland, 1 Law Reporter, 313. Bartlette, for the appellants, cited C. C. 2299. Myers v. Perry, 1 An. R. 372. 8 Mart. N. S. 504. 8 La. 539. The judgment of the court was pronounced by

SLIDELL, J. This is an action brought by the plaintiff, charterer of the steamer Edna, against the master, pilot and owners of the steamer Westwood, to recover the amount of damages arising from a collision. The plaintiff alleges that the officers and crew of the Edna did every thing in their power to avoid a collision, and were not guilty of any fault; and that the collision and loss were caused by the negligence and unskilfulness of those in charge of the Westwood. The court gave the plaintiff judgment for $326 50, and the defendants have appealed.

It appears that these steamers were making a trip from Biloxi to New Orleans, each having a considerable number of passengers. The Edna left Biloxi a short time before the Westwood, and as they approached the entrance of Pass Christian, the latter attempted to pass the former, coming close alongside on the starboard or shore side-so close that the vessels were almost touching. A witness, who was a passenger, declared that he could have shaken hands with a person on the other boat. They ran in this position for about an hour, the passengers conversing together on the chances of a collision, and the women and children being in a state of alarm. At length the bell of the Westwood rang, and her engine stopped. She fell nearly astern; but before the two vessels were quite clear the engine was again in motion, and the former position was resumed. The collision took place shortly after, by the Westwood striking her bows against the Edna on the after part of the wheel house, her engine having been again stopped a few seconds, but too late to avoid mischief. The wheel-house and wheel of the Edna were broken; unable to proceed, she drifted towards the shore, and anchored or touched the bottom. The Westwood proceeded on her voyage, offering no assistance. At the entrance, Pass Christian is a mile in width, and the two boats were at the time of the collision in sight of the wharf at Pass Christian, distant about half a mile. The immediate cause of the collision was considered by the district judge as left in doubt. The witnesses on one side deposed that the Westwood sheered into the Edna, while the witnesses on the other side as positively swore that it was the Edna which sheered into the Westwood. The district judge expressed his decided censure and condemnation of both masters; declaring himself satisfied "that the motive with the captains was to reach the wharf first to catch the passengers, for which purpose they recklessly pressed their boats regard

less of consequences." He gave, however, apparently with serious reluctance, a judgment in favor of the plaintiff. He was of opinion that an attempt to pass ought not to be made in a narrow channel; that, if passing was justifiable, it should have been attempted, not by running inside of the Edna, but by giving her a sufficient birth and running to seaward, where it was shown the Pass was a mile wide, with plenty of water. "If," said the judge," she chose to run between the Edna and the land in the inner side of the channel for the purpose of first reaching the wharf, she risked the collision which has taken place, and must bear the consequences."

We entirely concur with the district judge in the view he has taken of the facts of this case, but are unable to assent to the legal conclusion deduced from them. It may be conceded that the captain of the Westwood committed a gross fault in running his steamer inside of the Edna; and yet it by no means follows that the plaintiff should be maintained in his action. The question still remains, could the plaintiff, with ordinary care, have avoided the collision? Was there a proper prudence exhibited, under the circumstances? Such a prudence as must be exacted from every man, and especially from those to whom the lives and property of others are entrusted? The district judge has properly characterised the conduct of both masters as censurable and reckless. The spectators of this scene had been expecting a collision for some time previ ously, and its danger, instead of decreasing, was becoming more imminent. When the captain of the Edna saw that the rival boat was pertinaciously vio lating the usage and pressing for the inner side of the channel, he had no right obstinately to persevere in his course because the other party was in fault. He should have abandoned his course and yeilded his right, in order to secure the safety of his vessel and passengers. There is not the slightest reason to suppose that the collision might not have been avoided, if the officers of the Edna had chosen to desist from the race in which, as said by the district judge, both parties recklessly pressed their boats regardless of consequences."

66

We held in Meyers v. Perry, 1 Ann. Rep. p. 374, that a party cannot be heard as plaintiff who has contributed to the collision by his own negligence or improper management; and, after a careful re-examination of the authorities, we find no reason to depart from the doctrine.

In Butterfield v. Forrester, 11 East, 60, the rule was very forcibly stated by Lord Ellenborough. The defendant had put an obstruction in the road, over which the plaintiff fell. But it appeared that he was riding with great violence and want of ordinary care, otherwise he might have avoided the obstruction. It was then said, a party is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered the wrong side of the road, that would not authorise another purposely to ride up against them. One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action-an obstruction on the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.

In Handyside v. Wilson it was urged by counsel that, there was no law of the sea or the road, by which a person is justified in adhering to a particular course where it will be productive of mischief; and the court sustained that view. 3 Carrington & Payne, 528.

In Vanderplank v. Miller, 1 Moody and Malkin 171, it was proved that the

CARLISLE

V.

HOLTON.