DECOUX'S HEIRS vs. PLANTEVIGNES, 10 La. 503

Martin, J. delivered the opinion of tbe court. Tbe defendant is appellant from a judgment, which condemns him to pay to the plaintiffs a sum of money, which he retained on a settlement with them, of the succession of their ancestor, which had been entrusted to him. The plaintiffs, appellees, contend the appeal ought to be dismissed, because it was made returnable by consent, on the first Monday of January, which was the second day of the month, and the transcript, was not filed until the 5th of January. In the case of Traverso et al. vs.

Row et al. ante 500, which we have .lust decided, we held that the appellee cannot claim a dismissal of an appeal, on the ground of the transcript not ... , , , , , , , „ having been filed on the return day, unless he does so before it be actually filed. This is a stronger case. The transcript was brought up on the third day after that on which the appeal was returnable. The appellee, therefore, was not entitled to demand from tbe clerk the certificate, on the production of which, execution could have issued from the Inferior Court. Code °f Practice, 589.

Neither could he have demanded the dismissal of the appeal, because

article 883 gave the whole of the day upon which the transcript was filed, to the appellant, in order to obtain from this court a prolongation of ,. time. In the case of Ross vs. St. Francis’ Church, we held that the transcript need not be filed on the return day, if it be not a judicial day, and that the delay of three days, is of three judicial days. This court did not sit on the 2d of January, nor on any of the three following days. The appeal, therefore, cannot be dismissed.

A person employed in the settlement of a succession, will be allowed to introduce evidence in support of a commission charged by him, to show that it is usually allowed in such cases, because he might show he was, within the knowledge of his employers, a person frequent-Iy engaged in such business, changes were usually Allowed to persons in similar circuía-stances. On the merits, the counsel for the appellees bas urged, 1st. That the power of attorney, under which the defendant acted, was a gratuitous one, and having accepted it, he could not pretend to a remuneration. Louisiana Code, 2960. 2d.

The receipts offered by him, to show that the tutors of the minor heirs had agreed to pay him a commission, do not go to that extent. They receipted for the hereditary portion of the heirs alone, and it was incumbent on the agent to show specially, an agreement on their part, to pay him a commission. Potkier, Traite des Obligations, vol. 1, page 460,

article 784. 3d. If the receipts are evidence of an agreement to allow a commission, they are so of a donation of the minors’ property, which the law prohibits. Civil Code, 347. 4lh. A minor injured by the act of his tutor, has a remedy against him, and also against the person, he illegally availing himself of such

an act. Leonard’s tutor vs. Mandeville. 9 Martin, 490-8. Butler vs. His Creditors, 5 Martin, N. S., 655. The defendant’s and appellant’s counsel has drawn our attention to a bill of exceptions, to the opinion of the court, refusing him leave to introduce evidence of a charge of commission, as that made by him being usually allowed in the parish, to persons undertaking the settlement of successions. 2d. He has urged that the receipts of the heirs, for the balances coming to them respectively, is evidence of a settlement of account, in which the charge for commission was made and allowed. 3d.

The silence of the plaintiff, (from 1825 to 1836,) is a corroborating circumstance, from which a strong presumption arises, that the commission was, on a settlement of account, thought to be due. 7 Martin, JY. S., 143. 4th. The contract made, is from its nature gratuitous, but not essentially so. A compensation may be legally stipulated, expressly or impliedly. 18 Duranton, No. 197. Sirey, 32, 1, 621. orAmnndateti<is gratniious, unless there has been a contrary neeínot^eex-press, it may be imphed.

The receipt of baiai!cerSisf0evi-dence of an ac- and a settlement dente ofS the allowance of ev«ry charge made m the commissions retained. The commission charged for atuccessionmay be allowed in pensation usual-anípaidfbrsucií tutorniay ¡Mow this commission If the heirs respectively received the sums due them from the person en-setaement!h ‘of their' ancestor’s succession, on an account rendered, the balance retained by him, will be presumed to be on account of his commissions, and as if they ■were . actually paid to him.

It appears to us, that the evidence offered by the defendant and appellant, ought to be received.

It was useful to him, after having shown that persons engaging in the settlement of successions charged, and were allowed, a commission therefor, he might have shown that be was in the knowledge 0f j^jg employers,-a person usually engaged in such settler J 7 1 J do ment, and that his charges were not greater than those niade by, and allowed to, persons in similar -circumstances; aQd tbence have contended, that the persons who employed him, knew that he expected a compensation, and presented in „ ,- . ., „ the allowance of the commission, as an evidence or an implied promise to pay it.

The first proposition of the appellee’s counsel, has been correctly answered by the fourth of the appellant’s, that the procuration is gratuitous, unless there have been á contrary agreement. Louisiana Code, 2960. This contrary agree- & , J o ment need not be express, it may be implied. 2d. The receipt of the heirs for a balance, is evidence of an account rendered, and a settlement made. It is evidence of the allowance of every charge made in such account.

The plaintiffs do not contend, that the defendant neglected to charge himself with any thing with which he was chargable. ° _ , i ° only, claim the amount of the commission he has retained, on paying the balance in his hands, on the rendition.of an account, in which this commission was necessarily * . J charged, as ordering pro tanto the balance he owed. 3d. As the defendant, when he was requested by the tutors of the plaintiffs, to undertake the settlement of the succession of their ancestor, might have stipulated for the compensation usually allowed for such a service, without vi°^at'ng the

article of the Code cited, it follows that- the tutors, in agreeing to pay that' compensation, made no donation to him, but promised a quid pro quo, a fair compensation. 4 4th. The tutor in doing so, did no iniury to his minor. J TT , , , , , .

Upon the whole, it appears to us, that all the plaintiffs ^avin§ left> wben tbey received their respective shares of the succession of their ancestor, a sum in his hands, which is admitted to be no more than the commission, which he claims as a compensation for his services, and all of them but one, having acknowledged that the sum by them respectively received, was the balance of an account rendered by the defendant, in Which this charge is admitted to have been made, since it is now claimed as having been then retained, it'follows that they are in the same situation as they would be if the commission had been actually paid; had it been, the payment would be a very strong presumption that the plaintiffs considered the defendant entitled thereto.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed, and that judgment be given for the defendant with costs, in both courts.