MARTIN vs. NEWTON ET AL., 6 La. 286

Mathews, J., delivered the opinion of the court. This is a suit to recover remuneration for damages, which the plaintiff alleges she has sustained by unjust and illegal conduct of the defendants, in relation to certain properly belonging to her, consisting of household furniture, which was placed in their possession, or under their control for safe keeping, and which they caused to be sold at a great sacrifice, without any authority from her, and to her great damage and injury, &c.

The cause was submitted to a jury in the court below, who found a verdict for the defendants, and judgment being rendered in pursuance thereof, the plaintiff, after an unsuccessful attempt to obtain a new trial, took the present appeal. The answer contains allegations of many acts of beneficence done by the defendants to. the plaintiff, during her residence in the city, to aid her in the business of inn keeper, which it seems was her occupation.

They deny that they were ever her depositaries of the furniture set out in the petition, but that it was placed in their possession, or under their control, by a certain Ralph Wells, who had purchased the property from the plaintiff, and who empowered one Gustavus Schmidt, to sell it, &c., under whose authority they allege that it was sold for a fair price, some at auction and some by private sale, and the proceeds applied to the payment of the plaintiffs debts.

They further plead in reconvention, in cases where anr manner sup-gypre„Íuryc0urt verdietSt“as S™dof fact ¡Tut remanded "when court r.anU?tfuily concur in the conclusion of the The whole evidence of the case, as it appears on the record, creates a violent presumption in our minds, that the sale to Wells, (even admitting the act by which it is attempted to be supported, was signed by the plaintiff, which does not fully appear) was simulated, and that to the knowledge of the defendants. If this sale were simulated, Mrs. Martin was not divested of her right to the property.

We are inclined to infer from Wells’ entire testimony, which was taken, found in his answers to the direct and cross interrogatories, that he never paid a valuable consideration for the property, and that he was a mere nominal purchaser, with a view to serve the purposes and interest of the defendants. Our inference from the testimony of this witness is forceably corroborated by that of Schmidt, his pretended agent. He was informed by his principal, that the business would give him no trouble, that Grant (in whose ware house the furniture was stored) and Newton would understand themselves about the sale.

The witness on cross examination, stated that he never delivered any order for the sale of the property, and has a slight recollection, that Mr. Newton told him that the furniture had been sold, &c. The verdict of the jury can be fully justified, only in the belief that the entire interest of the plaintiff in the property, which forms the basis of the present action, was transfered to Wells by the pretended sale, and that consequently the defendants did not illegally interfere in the disposal of it to her prejudice.

In cases where the evidence does in any manner support the verdict of juries, this court is not in the habit of disturbing their decisions, as founded on matters of fact, but it is not unusual for us to send a cause back for a new trial, before a second jury, when we cannot fully concur in the conclusion of the first. There is something rather mysterious in the present case, which may possibly be elucidated by further testimony on a new trial, and the verdict of another jury, being probably better calculated to solve matters of this nature than the court.

Worthington, M- Caleb and Gray, for plaintiff and appellant. L. C.'Duncan, contra. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, the verdict of the jury set aside, and the cause remanded for a new trial. The appellees to pay the costs of this appeal.