Egerton v. Buckner

Same Case — on a Reheabjng. Having established then that the plaintiffs have a right to maintain this action in the form which they have selected, and that they have legally put the defendants in default, there remains but one question : What is the amount of the damages ? Whether the sale made by the broker to the plaintiffs be regular, or not, is a matter of no consequence. It was one way of ascertaining the amount of the damages. The defendants would not be the less liable to damages, if the United States Bank notes had remained to this hour in possession of the plaintiffs. If the court think, that on the day of the sale by the broker, the notes were worth more, then it will diminish the damages ; but no such proof appears on the record. If, however, the court deem an actual sale of the notes requisite, arid that the plaintiffs’ right to recover damages depends absolutely upon the fact of a sale, the proof is in the record of an actual sale at the very highest market price, viz. fifty-eight and one-half cents per dollar; so that, by diminishing the amount of the judgment below, at the rate of seven and one-half cents on the dollar, the plaintiffs would be still entitled to a decree for nineteen hundred and twenty-five dollars. The appellees earnestly urge upon the court, since its decree shows plainly that the equity is with the plaintiffs, not to remand the cause. The appellees are secured by an appeal bond signed by a surety, who has in his hands, as they are informed, ample indemnity. If the case be remanded they will be deprived of this security, and as the defendants are now bankrupts, the loss will be irretrievable. J. C. Duncan, and Eustis, for the appellants. It is not perceived, that there is any matter presented by the counsel which has not already been considered by the court. It is not understood, that the position assumed by the court, that the case presents for consideration the obligations arising under mutual loans for consumption, is at all shaken. The right to sell on the default of the vendee, in the example stated, depends upon principles peculiar to the contract of sale. Where is the authority for extending them to the contract of mutuum 1 If the thing loaned is not returned at the time agreed on, the party in default pays interest. Civil Code, art. 2893. The plaintiffs have their action, on a case •properly made out, for the sum loaned and the interest. On recovering the money loaned, they must give back the notes borrowed. It is understood, that the court does not admit the standard of damages assumed by the argument of the defendants’ counsel; and as no authority is presented against the views of the court, no new argument is required in support of them- A more mature consideration of the subject will confirm them. The borrower has no right to take to himself the thing borrowed at the market price, and to sue for the difference between that and the value of the object loaned. This standard may be applicable to the contract of sale alone, but is inconsistent with the obligations of the contract under consideration. Garland, J. A re-hearing was granted in this case, on an allegation and admission after the judgment, that there was a clerical error in the.record, which misled the court on one point; and because a doubt was created in our minds by the ingenious arguments contained in the petition, which have induced us to reexamine the case with great care. The correction of the record, by showing that the suit was *356 brought on the 19th of February, 1842, instead of the 9th, proves that the defendants were legally in default, about which fact some-doubt was expressed in our opinion ; but that point was one of minor importance in the case. The great objection with us was, the mode pursued in establishing the difference between the United States Bank notes, and those of the Banks of Louisiana, and thus fixing the measure of damages. We cannot agree that it was fair and legal for the plaintiffs, who are money brokers, to put the notes which they had to restore to the defendants, in the hands of another broker, to hawk about the streets of the city for a day or two, and then sell them to a partner of the plaintiffs in the transaction, and by this means fix a measure of damages. The giving countenance to any such principle, would lead to the most pernicious consequences. It was well understood, when the original agreement was made, that the plaintiffs were to return to the defendants, the same description of notes they had received, and receive the same kind they had given ; the plaintiffs, therefore, had no right to take every thing into their own hands, and by a combination fix the sum the defendants shall pay. The contract between the parties was not one of sale, and, therefore, the rules as to establishing the rate of damages are not applicable. We will not, on such evidence as is before us, finally settle this controversy; nor can we be induced to do so, although it is urged that the defendants are now bankrupts, and that if the judgment is reversed, the claim of the plaintiffs will be lost. There is no evidence before us of the bankruptcy, nor any fact that induces the belief that the defendants are not as solvent now, as they were in February, 1842. The former judgment remains unaltered.