Adam Brothers vs. Oteri & Brother. is thus entitled, he is likewise entitled to notice of judgment only when his principal is, and therefore when as in this case the defendant appeared and defended the suit, and is thus not entitled to notice of judgment, the surety has no cause of complaint when the execution issued upon the judgment of dissolution and for damages against him, after the expiry of the delay for an appeal, without notice to him of the judgment. It will be observed throughout that we are considering and deciding alone the case where the judgment, the execution of which is arrested, is a judgment for the payment of money. If the plaintiff was endangered by the seizure of his property under the fi. fa. the injury resulted from his own failure to fulfill the obligation into which he had entered for the payment of such damages as may have been sustained by the injoined creditor through his ownership. Judgment affirmed. No. 8926. ADAM BROTHERS VS. S. OTERI & BROTHER. A principal is bound to reimburse the expense and charges which his agent has incurred in the execution of the mandate, and pay his commission where one has been stipulated. Neither can he be dispensed therefrom, nor be permitted to reduce the amount to be reimbursed, under pretense that the charges ought to have been less, even if the affair has not succeeded, where no fault is imputed to the agent. A PPEAL from the Civil District Court for the Parish of Orleans. Henry Denis for Plaintiffs and Appellants. W. S. Benedict for Defendants and Appellees. The opinion of the Court was delivered by BERMUDEZ, C. J. This is an action sounding in damages alleged to have been sustained in consequence of counter orders from the defendants preventing the complete execution of a contract, partially carried out, under which plaintiffs, for their services, were to receive a fixed remuneration. The allegations are that the plaintiff's were employed by the defendants for the purpose of forming in England a limited liability company for a steamer in process of construction, and to provide for some arrangement with the builders for a satisfactory guarantee for the pay Adam Brothers vs. Oteri & Brother. ment of the last instalment (£5000) of the price; that the defendants had agreed to pay for the plaintiffs' services £300; that the petitioners were engaged in the execution of that agreement and had already taken a great deal of trouble; done much labor and incurred expenses in furtherance, when the defendants changed their minds and instructed plaintiff's to proceed no further. The defense is a general denial, amplified by averments to show that whatever passed between the parties, the alleged agreement never was entered into and that the sum claimed is greatly in excess of what would be the customary fee in like cases, viz: £20. There was judgment dismissing the suit, and plaintiffs appeal. Oral and documentary evidence was adduced, the latter consisting in the letters and cablegrams which passed between the principal and intermediate parties. The record contains some thirty letters and twenty dispatches on the subject. We deem it unnecessary to state specifically what that evidence was. We think that it establishes that the defendants, through the firm, Forstall, Ross & Clayton, of this city, did authorize the plaintiffs to take all necessary steps to form the company and to make some arrangement for the payment of the unpaid portion of the price of the steamer; that they agreed expressly to pay the plaintiff's £300 for their services; that the plaintiffs had a good deal of trouble in carrying out their mandate, placed the matter in the hands of a solicitor, had the projet of an act prepared, which they transmitted to the defendants and which is in the record, for their inspection and consideration, conforming as much as practicable with their views and instructions as far as understood; that the plaintiffs were willing to undertake to guarantee the payment of the balance of price due the builder, provided they were secured either by a transfer of stock or by a mortgage on the steamer. It further appears that a brother-in-law of the defendants, who has an interest in the ship, the importance of which cannot be easily or correctly stated, as he, himself, when pressed to specify it did not do so, and who was to have been put in command of the vessel had he proved himself, as he claimed to be, an English subject, threw impediments in the way of the execution of the agreement. It also appears that it is on this account that the defendants countermanded their previous instructions, which had taken the form and substance of a valuable contract, in which the plaintiff's had acquired a pecuniary interest, a vested right, which could not be wrested from them with impunity. 36 388 114 496 Succession of St. Hubert, The counter orders to plaintiffs imply an anterior understanding and contract. It is immaterial whether the litigants be viewed and dealt with as independent contracting parties, or as agents and principals. From either stand-point, the plaintiffs should recover. The law on the subject of mandate distinctly recognizes their rights as asserted in the present action. Article 3022 R. C. C. expressly provides: "The principal ought to reimburse the expense and charges which the agent has incurred in the execution of the mandate, and pay his commission where one has been stipulated. "If there be no fraud imputable to the agent, the principal cannot dispense with this reimbursement and payment, nor can he reduce the amount of the reimbursement under pretense that the charges and expenses ought to have been less." C. N. 2999; 2 R. 63, 163; 1 A. 5; 2 A. 624; 18 A. 342; 3 A. 98. Nothing indicates that the plaintiffs ever were in default, while the proof is clear that the defendants were in various ways. Had not Capt. Pizatti, the brother-in-law already mentioned, interposed obstacles as he did, which proved a stumbling-block, the undertaking would have been carried out by the plaintiffs, who having been foiled, should recover. The measure of the damages is the amount which they would have earned had not the countermanding taken place and had they been permitted to complete their undertaking. The judgment of the lower court was one of non-suit. The proof warrants a recovery. It is, therefore, ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that plaintiffs recover of the defendants, Salvador Oteri and Joseph Oteri, in solido, the sum of fifteen hundred dollars, with legal interest from judicial demand until paid, with costs in both courts. No. 9165. SUCCESSION OF ALCIDE ST. HUBERT. On an appeal from a judgment appointing the public administrator for the parish of Orleans administrator of a succession alleged by him to be vacant, the question is not whether the deceased had left heirs present or represented, in the State, but whether the exist ence of such heirs was made known, by opposition or otherwise, to the court, before the rendition of the judgment. Succession of St. Hubert. If the judgment was preceded by an application with proper allegations, by public notice, was rendered after legal delays, and without opposition, the appellate tribunal cannot consider evidence brought after the judgment tending to show the existence and presence of legal heirs with a view to obtain a reversal of the judgment. A PPEAL from the Civil District Court for the Parish of Orleans. Chas. Louque for the Heirs, Appellants. Breaux & Hall for the Public Administrator, Appellee. The opinion of the Court was delivered by POCHÉ, J. The mother and the three sisters of the deceased, represeuting themselves as his sole heirs, have taken this appeal from the judgment of the district court, appointing the public administrator of the parish of Orleans, administrator of this succession. The record discloses the following facts and proceedings: A few days after the death of Alcide St. Hubert, who died in this city on December 8, 1883, the public administrator applied for the administration of his succession, alleging that the deceased had left property and debts and that he had left no surviving wife or heir, present or represented in the State, entitled to or claiming the administration of his succession. After due public notice of the application, and after the expiration of legal delays, and no opposition having been made to the application, the court appointed the public administrator and he was at once qualified as administrator of the succession. From that judgment, which was rendered and signed January 10, 1884, the present appeal was taken by motion, on the 4th of February following. The motion of appeal was supported by affidavits of appellants reciting in substance that they are the sole legal heirs, all of age, of the deceased, and that they are now and were, at the time of his death, residents of the city of New Orleans. The contention of their counsel is that these facts show conclusively that the public administrator was not entitled to the administration of this succession and that his appointment as such should be annulled and set aside as having been made in contravention of law. Our understanding of the issue presented by the appeal, is that the sole question which we are called upon to decide involves the validity of the judgment appointing the administrator under the pleadings and facts then brought to the knowledge of the court. Mehnert vs. Dietrich. On appeal, our investigation must, in the very nature of things, be restricted to the matters argued or contended below. This rule peremptorily excludes from our consideration all matters and elements of proof as well as issues which parties may seek to inject in the proceedings subsequent to the rendition of the judgment complained of. Hence, in this matter, the question is not whether the public administrator is entitled to his appointment under the showing made by appellants, who now present themselves, but whether under the showing made before the district judge his judgment is sustained by law. The record shows conclusively that no heirs had presented themselves, or were then known, to the court, and that no opposition had been made to the public administrator's application. Under those circumstances the law itself dictated the judgment which was rendered in the premises, and we have no authority to disturb it on this appeal. Acts of 1870, p. 120; Acts of 1877, p. 111. It is, therefore, clear to our minds that appellants have entirely mistaken their remedy. Judgment affirmed. 36 390 51 1170 No. 9066. HUGO MEHNERT VS. M. DIETRICH. Where the transcript is complete, but the certificate of the clerk is defective in not showing it, the omission in the certificate may be supplied by a proper and timely motion. Where no judgment for damages is rendered or prayed for against the sprety on an injunc tion bond, he is a competent surety on the bond of appeal taken from the judgment dis solving the injunction. Where after marriage and under the régime of the community, a business which had formerly belonged to and been conducted by the wife, is conducted in the name of the husband, it becomes the business of the community, and its acquests and good-will are liable to seizure for the husband's debts. A PPEAL from the Civil District Court for the Parish of Orleans. Paul Reusch and John P. Smith for Plaintiff and Appellee. A. B. Philips and Albert Voorhies for Defendant and Appellant. ON MOTION TO DISMISS. The opinion of the Court was delivered by TODD, J. This motion is based on two grounds: 1. Upon the alleged incompleteness of the record, as shown by the certificate of the clerk. |