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the house, and put it in proper shape to bear the load you contemplate, after the sugar and syrup now inside are taken out. would also state that, from calculations I have made, I think that you certainly have a million pounds on your piers, which are fourteen reet apart, and which sustain all the weight." It is not a fact, therefore, as stated by Mr. Webb, that he called in Major Pruyn about the middle of December, nor is it a fact that Major Pruyn advised him that it would take 60 or 90 days to brace the building, nor yet is it a fact that, not wanting to be tried for murder, he shut down upon receiving Major Pruyn's report, since that report was made December 1st, and he did not shut down until December 21st, some three weeks later, during which period he by no means confined himself to working off the material on hand, but received, and manufactured into sugar, cane from various shippers, as follows: From Le Bourgeois, 59 cars; from Ory, 29 cars; from Levert & Donaldson, 11 cars; from Ory and Read, 8 cars; and from Malarcher, 13 cars. And not only was this the case, but upon the same day upon which Major Pruyn made his examination and report he gave written instructions to the railroad officials to resume the delivery of empty cars to the planters with whom the defendant had contracted, in order that they might resume their shipments of cane. And it was in consequence of this action that the persons named above resumed their shipments, and continued them until December 17th, when they were notified that the defendant would receive no more cane, not because the building had settled, but for reasons as thus stated: "The defects in certain parts of our plant render it impossible to make any further attempt to take off this season's crop. The makers of the defective machinery claim that it would take sixty or ninety days to remedy our present trouble, making it too late for this season's work. We will be unable to receive any more cane from you." This record will, however, be searched in vain for evidence as to the existence of defective machinery at that time, or of any claim by the makers of such machinery, or any one else, that it would take 60 or 90 days to remedy any defects of any kind in the plant.

Some explanation would seem to be needed upon the subject of the continued operation of the mill after the report made by Major Pruyn upon December 1st; for, notwithstanding the letter of December 17th, the mill was operated until the 21st of that month. That explanation seems to be afforded by Major Pruyn's testimony. He says that he found water all around the basement; that the interior supports (upon which the million pounds mentioned in his report rested) consisted of piers 14 feet apart, which were insufficient to support the weight imposed upon them; that a solid wall should have been put in in place of the

piers; that if the water had been diverted the foundation would not have given way; and that if the weight had been evenly distributed the settling would not have rendered the building dangerous. He further testifies that the remedy suggested by him at the time was "extra posts," and he says: "I drew a sketch, and gave it to Mr. Webb, but he did not follow out that sketch; but he put extra posts into it, which did just as well as if he had followed out my sketch." We therefore learn from the expert who was consulted by defendant that the trouble with the building arose rather from commonplace bad construction than from the phenomenal and uncontrollable springs to which that trouble is now attributed. We also have from this witness the statement of a fact which might suggest itself to any person of ordinary intelligence, to wit, that if it is found that piers which are overweighted are settling, and it also apears that the ground upon which they rest is covered and saturated with water, the natural thing to do is to drain off the water; and yet we are told by Mr. Webb that that idea did not occur to him until 1896, when he caused a small drain to be put in, since which he appears to have had no further trouble from that source.

The explanation of the continued operation of the plant after December 1st, then, is that the danger was provided against by the putting in by Mr. Webb of extra posts, not exactly as recommended by Major Pruyn, but in some way "that did just as well" as though the sketch by that gentleman had been followed, and hence that when the plant eventually shut down, on December 21st, it was not because of the settling of the building, but for other reasons. This view of the matter is strengthened by still other circumstances. Thus, notwithstanding Major Pruyn's report of December 1st, Mr. Webb wrote to plaintiff on December 6th that the great source of the trouble had been discovered, and that it was "in working cane cut too long and too high"; following which was his letter of December 17th, being the last one written by him on this business, in which he speaks of defective machinery, but says never a word concerning the settlement of the building. Demming, who had charge of the construction of the plant and of its operation for a while, withdrew early in the season, and brought suit on his contract of employment. To this the defendant filed an answer, gratuitously sworn to by Mr. Webb, in which it denied liability upon the grounds that by reason of the unskillful construction of the plant it was unable to operate at all during the most active part of the season, and obtained only the most meager results when it did operate; that its shutting down was rendered necessary by reason of the plaintiff's incompetent supervision and construction, and of his abandoning his position, and leaving the defendant "without a skilled head" to take his place; that defendant had

been induced, through fraudulent misrepresentation, to buy a clarifier from plaintiff which failed to do its work, and occasioned great loss, etc. In his testimony in the case before us Mr. Webb says that he was mistaken in his estimate of Mr. Demming and his clarifier, as thus given in his sworn answer, and that he made affidavit thereto because his attorney asked him to do so, and he "supposed it was part of the proceedings." Accepting this explanation, the fact remains that Mr. Webb may be mistaken, and that he can be very positive in his errors; and the fact also remains, and is placed beyond question, that the plant was left early in the season without a skilled head to operate it, and that it was unequal to the work which had been undertaken. The trouble arising from the lack of skill and experience is made manifest from the aumission of the defendant's representative, in various letters written by him and in his evidence on the trial, from which it appears that there was, from the beginning, miscalculation, or no calculation, as to the quantity of cane which could be consumed in the daily operation of the mill, and as to the handling of the loaded cars, so that the factory was chronically in a state of congestion, a large proportion of the cane turned sour before it was ground, and both time and money were lost in the attempt to make sugar from the sour cane. In this connection it is significant that, while for the season in question the defendant had contracted for 16,000 tons of cane, it contracted the next year for a much smaller quantity, and ground only about 3,500 tons, although it claims to have improved its plant in the meanwhile.

Our conclusion, therefore, after a re-examination of this case, is that the defendant failed from the beginning to comply with its contract, not so much by reason of any of the conditions provided for therein, as because of the ignorance and lack of experience of its representatives; and that it discontinued operations before the close of the season, not because of the settling of the building, but because, having no skilled head in charge, and the capacity of the plant having been overrated, it found that it was not only inflicting loss upon others, but was losing money itself.

Reverting, now, to the contention that the plaintiff is not entitled to recover, because, as alleged, he refused to ship his cane to defendant, the circumstances under which he began his shipments to La Place have been stated, and there is no complaint as to his action in that respect up to December 3d, at and after which date, up to December 17th, it is claimed that he might and should have shipped his cane to the defendant, and that, not having done so, his entire claim should be dismissed. The proposition, as stated, involves, we think, a non sequitur. If, in the course of the execution of the contract, the plaintiff failed to ship cane to the de

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fendant which he might have, shipped, and ought to have shipped, he should not be allowed to recover for loss resulting from the nonshipment of that particular cane; and so, if the plaintiff, on being requested, in November, to discontinue his shipment until further notice, had accepted the situation, as far as the past was concerned, and had announced to the defendant that he considered the contract off, and would go no further with it, it might well be argued that he would have no claim at all for damages. But if, upon the other hand, the plaintiff, in the course of the execution of the contract, merely failed to ship a certain quantity of cane, and the defendant sustained no loss thereby, and claims none, while the plaintiff sustained serious loss by reason of the defendant's failure to execute the contract as a whole, which execution the plaintiff continued to demand, there would seem to be no sound reason, considering the peculiar circumstances of this case, why the defendant should not make good the loss resulting from its fault and failure, and to which the plaintiff did not contribute. Applying this reasoning to the facts, there is no doubt that the defendant, upon November 12th, requested the plaintiff to discontinue shipping until further notice; and it is also true that specific notice to resume shipment was not sent, and that, while plaintiff was informed on November 29th that the tracks were opened, no cars were furnished him until December 3d. From this latter date, however, the plaintiff may be fairly considered to have known that the defendant was receiving cane, and, as it was within his power to have controlled the destination of the empty cars which were thereafter delivered at his siding for his use, he could as readily have sent them, when loaded, to the defendant's mill as to La Place, and he is not, therefore, entitled to recover for loss resulting from his failure to avail himself of the opportunity thus afforded.

Upon the other hand, neither the remarks made by the plaintiff to the flagman of the railroad and to others concerning the defendant and his relations with it, nor the fact that he continued shipping to La Place, ought, under the circumstances, and when considered in connection with his direct communications with the defendant, to be regarded as an abandonment of his rights under his contract. The conduct of the defendant had placed him, and kept him, in a position of uncertainty and financial peril such as no man could be expected to endure with equanimity, and his irritation manifested itself by his shipping some car loads of cane to La Place which he might have shipped to defendant, and in the use of language which would ordinarily have been left unuttered. These shipments, however, occasioned the defendant no loss, and plaintiff's language was not addressed to the defendant or to any of its agents. What he had to say, and did say, to them, was that he was waiting for notice

to resume his shipments of cane, and expected the defendant to comply with its contract; and he said that in writing, and by means of letters dated November 28th and December 3d, respectively.

The remaining question, then, is one of amount. Plaintiff sold 1,747 tons of cane to La Place at a reduced price, and thereby lost $1,009.31, but of that quantity there were 46 car loads, or say 690 tons, shipped between December 3d and December 17th, which might have been shipped to defendant; so that the amount of the loss for which defendant is liable, being proportionately reduced, is $610.67. He claims to have lost 1,932 tons, which were left in the field, windrowed or standing. This is the estimated product of 69.3 acres, which he was unable to sell or grind, upon the basis of 28 tons to the acre. The balance of his crop produced on the 19.7 acres amounted to 3,206 tons, being a fraction over 16 tons 81 pounds to the acre, which, from the testimony of disinterested witnesses, is regarded as a fair yield in that section of the state. Plaintiff claims that the 69.3 acres, the product of which was lost, was his best land; but he does not explain why it was that, with the difficulties surrounding him, he left his best cane in the field until the 14th of February, and used his opportunities in grinding the poorest. He will be allowed to recover (upon the basis of 16 tons 81 pounds to the acre) for 1,111 tons and 1,410 pounds, at $2.70 per ton, less bo cents per ton freight, and 30 cents per ton difference between cost of getting rid of spoiled cane and loading good cane on cars, thus leaving $1.80 net per ton, or a total of $2,000, which, added to the $610.67 lost on cane sold to La Place, makes $2,610.67.

Beyond this, the plaintiff makes a claim for bounty, but we fail to find that he is entitled to recover it from the defendant, since the latter has not collected it, and the plaintiff was informed when he made the contract what would be done in order to collect it, and ought to have known better than Mr. Webb, who was inexperienced, whether the measures proposed were sufficient or not. If the bounty should be collected, the plaintiff would be entitled to it, and his rights in that respect will be reserved, as they were by the judge a quo.

For these reasons, it is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of the plaintiff, Albert Sidney Vredenburgh, and against the defendant, the Baton Rouge Sugar Company, for the sum of $2,610.67, with interest thereon at the rate of 5 per cent. per annum from judicial demand until paid, and with reservation of his rights with respect to the bounty herein claimed; the defendant to pay all costs.

BREAUX, J., dissents.

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1. Where the disposition or proposed dispo sition of produce from farm or factory is in the usual course of business (i. e. to commission merchants from whom advances had been procured and a pledge antecedently given), no grounds for attachment appear.

2. An attachment based upon the averment of a fraudulent disposition or proposed disposition of property, or unfair preference, must be supported by proof of some act or declaration of purpose from which the fraudulent intent of the debtor may reasonably be gathered.

3. If the credit and good fame of the debtor have been lessened, and the same is attributable rather to his own conduct than to the act of his creditor in attaching his property, small grounds for damages exist.

4. Under the circumstances of this case, while the attachment is dissolved, damages, except for attorney's fees and actual expenses, are disallowed.

(Syllabus by the Court.)

Appeal from judicial district court, parish of Iberia; Felix Voorhies, Judge.

Action by the State Bank of New Iberia against James F. Martin. Judgment for plaintiff. Defendant appeals. Modified.

Foster & Broussard and L. T. Dulany, for appellant. Anthony N. Muller, Andrew Thorpe, and Thomas H. Thorpe, for appellee.

BLANCHARD, J. This action was brought to recover $3,000, with interest and protest fees. Defendant, a manufacturer of sugar from cane, drew a sight draft for that amount on Levert, Burguierres & Co., commission merchants in New Orleans, with whom he was doing business, and carried the draft to the plaintiff bank, where it was cashed or discounted. The commission merchants declined payment, and the draft was duly protested for dishonor and nonpayment, whereupon the cashier of the bank immediately visited the defendant at his sugar refinery, informed him of the dishonor of the draft, and requested that the matter be arranged and the draft protected. Nothing coming of this, and not satisfied with the situation, the bank the following day instituted this suit, and invoked the writ of attachment in aid thereof. The grounds of attachment are that the petitioner "verily believes and fears the defendant has disposed of, or is about to dispose of, his property, or some part thereof, with intent to give an unfair preference to others of his creditors, and that he has just cause to fear he is about to convert his property into money or other evidences of debt with intent to place it beyond the reach of his creditors." The sheriff seized, under the writ, a lot of sugar in barrels, packed and ready for shipment, a lot of sugar not yet packed in barrels, and 25 car loads of cane, all of the probable value of $5,000, This 1 Rehearing denied June 19, 1900.

property was seized at the sugar refinery of the defendant. The refinery itself was not seized, nor was any of its realty, plant, machinery, or paraphernalia. Defendant does

not resist the indebtedness charged, but contests the attachment, and in the trial court moved its dissolution, averring no sufficient grounds therefor, and falsity of the allegations upon which based, and charged malicious motive on part of the plaintiff in procuring the same. He avers damages suffered by reason of the wrongful issuance of the writ, grouping the same under various heads, -the amount aggregating $75,000,-and prays judgment therefor in reconvention. The judgment below was in favor of the plaintiff for the amount claimed, maintaining the attachment, and rejecting and dismissing defendant's demand in reconvention. He appeals. The questions here presented for determination are (1) the legality of the issuance of the writ of attachment; (2) if found to have been unwarrantably issued, the damages, if any, defendant is entitled to judgment for.

1. Did the plaintiff bank have grounds sufficient in fact and in law to warrant recourse to the writ? We are constrained to hold that it did not. The evidence shows that the defendant had been engaged for years in the sugar-making business, and that he was so engaged in the season of 1898-99. He was not a grower of cane, but relied upon the surrounding cane growers for the cane manufactured into sugar at his mill. He was a purchaser of cane from them. His manufacturing plant was estimated to be worth about $70,000. His mill was running regularly at the time of the attachment, and for weeks before. His credit was reasonably good. He owed debts, but was not insolvent. His reputation and character in the community and the business world were good. Levert, Burguierres & Co. were his merchants. He shipped his sugar to them for sale. He relied on them for advances of money in his business. They held a mortgage on his sugar refinery for $10,000. Besides, he had executed in their favor a contract of pledge on the sugar and molasses he was to manufacture in the season of 1898-99, as additional security for the indebtedness; engaging himself not to sell, incumber, or dispose of the same, or any part thereof, to their prejudice, and to ship and consign the same to them in due course, the proceeds thereof to be applied by preference to the payment of the mortgage note. This act was placed of record in May, 1898. The attachment took place late in December of that year. He had been in the habit of drawing drafts on his commission merchants. Plaintiff bank had that season cashed other drafts of his on them. He had from time to time made shipments of sugar and molasses to them, and about the time the draft sued on was drawn he had shipped them quite a lot of sugar. It is true he had no funds to his credit with them, and was still in their debt, but the fact that other

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drafts of his had been paid by them shows he was not entirely without warrant in drawing the draft in question. When the draft was not paid, and the cashier called upon him in reference thereto, the cashier's statement of what occurred is substantially as follows: When he was asked in what way he could arrange the matter, he replied that he did not understand why Levert, Burguierres & Co. refused to pay his draft, as he had three days previously made them a shipment of sugar, the value of which was more than sufficient to pay the draft; that he thought they would pay it after he saw them; that possibly the sugar last shipped had not reached them, etc. The cashier answered, "That may be," but the bill of lading had, and that upon this bill of lading the draft should have been paid. Asked in what manner he could arrange the matter, he replied, "By making another shipment of sugar to the firm." But the cashier thought this unsatisfactory, since the firm, just in receipt of a bill of lading for sufficient sugar to meet the draft, had not met it, and there was no good ground for believing that they would meet it upon a still further shipment of sugar, but would, rather, do as they were doing with the last shipment,

apply its proceeds to the shipper's own indebtedness to them. Asked what security or collateral he had to offer to tide matters over until he could arrange to meet the draft, he replied that he had none. Asked on cross-examination for a restatement of the reasons which justified, in his behalf, the attachment, the cashier answered: "My fears were these: As Mr. Martin had told me he had shipped sufficient sugars on the 23d of December to more than cover the draft given us, and that draft having not been paid, it occurred to me then that Martin must be heavily indebted to the firm of Levert, Burguierres & Co., and that if further sugars were shipped them they would apply the proceeds thereof to partly liquidating whatever indebtedness was due them by him, and in that event we could have recourse on nothing else." The bank knew at the time it received the draft that the defendant was shipping his sugar to the firm in New Orleans on whom the draft in question and other previous ones which they had discounted were drawn. Defendant's version of the interview between himself and the cashier the night before the attachment is, in substance, as follows: Does not recollect anything said about the shipment of sugar. "Told him there was sufficient sugar shipped to meet the draft; that, if he would wait, I would go the next day to New Orleans, and endeavor to arrange matters so as to have the draft paid." He did not say whether he would wait or not, but next day, as defendant was on his way to New Orleans, he met the sheriff on the road, who served legal process upon him, and then proceeded on to the fac tory and executed the attachment. His intention in going to New Orleans was to see his merchants, and endeavor to arrange the

trouble that had arisen. While the record is burdened with much testimony, sifted down to its last analysis it is found that the only ground existing for the attachment was the fear that defendant would make other shipments of sugar to his merchants, who would apply the proceeds to the payment of what he owed them, and still refuse to meet the draft plaintiff held. Considering the attitude of these parties to one another in a business way, this did not suffice to warrant the attachment. The disposition and the proposed disposition of the sugar and molasses were in the usual course of business. It was consigned and to be consigned to defendant's commission merchants, to whom it was pledged by act of public record long prior to the attachment, as was well known to plaintiff's attorney at the time he advised the attachment. The bank knew all the time that the sugar was going forward to Levert, Burguierres & Co. It had repeatedly cashed other drafts for defendant on the firm, and when, in the conversation with the cashier after the protest, he expressed a purpose of sending forward other consignments of sugars to them, it evidenced no intent to give an unfair preference to them, nor intent to defraud his other creditors. It gave no sufficient ground for the affidavit that he was disposing of, or about to dispose of, his property with intent to give an unfair preference to others of his creditors, or that he was about to convert his property into money or other evidences of debt with intent to place it beyond the reach of his creditors. The case lacks the essentials to sustain the writ invoked. An attachment based upon grounds such as those here alleged must be supported by proof of an act or acts showing the fraudulent intent of the debtor to place his property beyond the reach of his creditors, or to give the unfair preference charged. Winter v. Davis, 48 La. Ann. 260, 19 South. 263. This is not a parallel case to that of Bowling Co. v. Colvin, 49 La. Ann. 1340, 22 South. 374, which seems to be relied upon by the trial judge as sustaining his view. The distinguishing feature of that case was an unfair preference, evidencing a fraudulent intent on part of the debtor to favor certain creditors and exclude the plaintiff. He was under no greater obligation to do for the others what was done, than he was to the plaintiff. He favored certain of his ordinary creditors by confessing judgment in their favor,-court being in session,-thereby enabling them to forthwith prove the same, obtain judgment, record the judgments in the mortgage book, and thus acquire the status of mortgage creditors. He was applied to to do the same for the plaintiff, also an ordinary creditor. He refused. This court properly held it laid the defendant open to the charge that he had mortgaged his property, or was about to mortgage same, with intent to give an unfair preference to some of his creditors, and that was ground for attachment, by the very letter of the Code. The unfair prefer

ence there was glaring. Here it fails altogether. Defendant did not alter the situation to the detriment of the plaintiff. In shipping and proposing to ship his sugar and molasses to his merchants, he was only doing a duty which he had long prior thereto engaged to do, to the knowledge of plaintiff,certainly to the knowledge of its attorney, who was consulted.

2. The attachment not being maintainable, what damages, if any, is defendant entitled to? We do not find that the attachment originated in any malicious motive to injure defendant. It was merely a mistaken invocation of one of the conservatory writs of the law, in the honest purpose to collect a debt incurred under circumstances showing the defendant himself not blameless. Drawing and cashing a large draft, like the one sued on, and another the same day, for an equal amount, in favor of another bank in the same town, without knowing for a certainty that the drafts would be honored, is not calculated to commend him to judicial sympathy. It greatly detracts from his "pose" as an injured and oppressed debtor. The plaintiff is no ruthless creditor carrying things with a high hand and in reckless disregard of the rights of its debtor. This debtor obtained plaintiff's money on representations that were not true; for, when he tendered the draft for discount, he is to be held as having represented it as good commercial paper. He has not returned this money, nor has he sought to save the bank from loss by giving it security for the debt. Under the circumstances, his exorbitant demand for $75,000 damages has much of the grotesque about it. We do not find that the attachment closed down his factory. The protest of his two drafts discounted by the two banks did this. The factory was not seized. Only movable property in it was seized. His credit was likely as much injured by the protests as it was by the attachment which followed. The closing down of the factory was ordered by him from New Orleans. He had gone there to arrange with his merchants to carry him further, to lift the bar sinister of the dishonor of his paper,-but had failed. Realizing this, he wired his son to stop operations. Drawing bills which he should have known would not be honored had produced this dire result. If his credit and good fame have been lessened, the same is attributable rather to his own conduct than to the act of his creditor. With his credit gone, no money in possession, and no place to get it, he could no longer purchase cane, and without cane his factory could not operate. We do not find that this condition of affairs is altogether chargeable to the seizing creditor, nor even enough so to hold it responsible in damages to the defendant, as here sought to be, on that ground. The grounds for attachment were not sufficient, but defendant can, under the circumstances of this case, recover nothing beyond the actual damages he has sustained as the result of the attachment.

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