SPOTTS vs. LANGE AND LONGUEPE, 7 La. 182

Martin, J., delivered the opinion of the court. This action is brought to recover from the defendants, in solido, a flat-boat and its loading, or a sum of one thousand four hundred dollars as its alleged value. The defendant pleaded the general issue, and averred he had purchased from his co-defendant, one undivided half of a flat-hoat, with a quantity of lumber and timber, and particularly part of a house frame, and that the latter had appropriated to his own use, such part of the timber and lumber as he wanted, and for the remainder, which came into his (Lange’

s) possession, he paid six hundred dollars to his co-defendant, whom he called in warranty. Longuepe (the other defendant) pleaded the general issue, and specially denied having taken possession of the boat or its loading. Pie admitted, that as agent of his co-defendant, he had purchased a quantity of lumber and timber on board of a flat-boat, from a person who called himself (and whom he believed to be) the real owner. He averred that-his co-defendant took possession of the lumber and timber.

The plaintiff, with leave, amended his petition, by stating that the sill of the house-frame, was of poplar, and not of walnut, as had been erroneously stated. To this amendment, neither of the defendants filed an answer. The plaintiff next filed a supplemental petition, praying that the defendants might answer several interrogatories annexed thereto. Longuepe objected that a motion he had made for a separate trial was still pending, and Lange’s answer must be taken in his own favor, on the demand in warranty.

That the interrogatories did not correspond to the allegations in the petition, and they were not filed until after the defendants had answered the petition. Ten days at least should have been allowed them to answer in. The defendants were ruled to answer the interrogatories, on the following day, and the defendant Longuepe excepted. Lange, in answering, averred the truth of his statements in his answer to the petition, denied that his co-defendant was his agent in the purchase, and averred that he did not know any thing but the payment of six hundred dollars.

Longuepe answered he was his co-defendant’s agent in the purchase, and was especially authorised by him for that purpose. That two hundred dollars only, were paid to the ostensible owner, for the boat and loading, which sum was paid by him, in the presence of the boat’s crew.

That his co-defendant desired the price to be stated at five hundred dollars, but the vendor put it down at eight hundred dollars, Whore two purchasers join in the purchase of a boat, its load and cargo, and one acts as the agent of the other; when sued jointly for the price, the one who authorised the other to act as his agent, cannot call his co-defendant in warranty. Purchasers of properly, from a person having the apparent right of disposing of it, are not to be considered as trespassers. The bill of sale was in the following words: “ Baton Rouge, Dec. 4,1832.

This will certify that I have sold a flat-boat loaded with lumber to Hilaire Longuepe, for the sum of $800, with all the articles thereto belonging.” The subscribing witness testified, that Lange was not present at the signing of the bill of sale. The vendor testified, that, as the agent of the plaintiff, he had delivered the lumber and timber claimed in the petition to Barber, in Kentucky. He identified a large portion of it, which he, being a carpenter, estimated at one thousand one hundred dollars.

Monget testified he heard Lange tell his co-defendant to purchase the boat and loading for them, and to pay the two hundred dollars. Roulston, a hand on board, deposed that the boat was first, commanded by Barber, but afterwards by Jones the vendor. There was a verdict against Lange for one thousand one hundred dollars, and for his co-defendant. Judgment was given accordingly, and Lange appealed, after an unsuccessful effort to obtain a new trial.

Our attention has been given to a bill of exceptions taken to the charge of the judge to the jury, in which he instructed them to disregard the appellant’s claim on the warranty, expressing his opinion that co-trespassers were not entitled to an action of warranty, which is confined to real property; adding, that no order to cite in warranty had been given or prayed for in the petition, or judgment by default had been taken.

It does not appear to us the judge erred, although we are not able to see the applicability to the present case, of that part which relates to co-trespassers, as the purchase having been made from a person having the apparent right of disposing of the property (purchased) the vendees ought not to be considered as trespassers. An amendment correethiir an error in the petiing'certahTtimbers in a housetrame, to aepopiar instead of ginaUy Ttihcdj does not require an answer.

The amendment stating the sills of the house frame, to be not 0f Walnut, but of poplar timber, appears to us a mere correction of an error in the petition, which did not render an answer necessary. On the merits, nothing appears to authorise our interfer- . , , ,. , ence with the verdict. It does not appear to us proper to notice the exceptions of Languepe, on his being ruled to answer interrogatories as he did not appeal. ° x x ^ therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs, J o ’