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Henderson was not bound in solido with Gaines & Relf for the debt evidenced by the note of Henderson & Gaines. The liability of Mrs. Henderson was based upon and was co-extensive with her obligation as a member of the partnership or community between herself and her husband to pay the debts of the community. What this obligation is is shown by the following articles of the Civil Code:

"Art. 2405. At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess, are presumed common effects or gains, unless it be satisfactorily proved which of such effects they brought in marriage, or which have been given them separately, or which they have respectively inherited.

"Art. 2406. The effects which compose the partnership or community of gains are divided into two equal portions between the husband and the wife, or between their heirs, at the dissolution of the marriage."

"Art. 2409. It is understood that in the partition of the effects of the partnership or community of gains both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution.

"Art. 2410. Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the mar riage by renouncing the partnership or community of gains."

From these provisions of the Code it is evident that if the widow, upon the dissolution of the community by the death of her husband, fails to renounce the community of gains, which, as the law stood at the time of the death of William Henderson, was equivalent to an acceptance of the community, she became personally bound to pay one-half of the debts of the community, but no more. She is not, therefore, bound in solido for the payment of the debts of the community, unless the contract upon which her obligation is based expressly so stipulates. This will be clear from the following authorities:

Pothier, in his treatise on Obligations, par. 261, says: "An obligation is contracted in solido on the part of the debtors when each of them is obliged for the whole, but so that a payment by one liberates them all." The same author, in his work, De la Communaute, par. 729, speaking of the husband's obligations on behalf of the community, says: "There is no difficulty when the husband has contracted alone. But would it be the same if he was obligated jointly with his wife, without any expression of solidarity? Would he, in this case, be debtor for the whole, as regards the creditor, after the dissolution of the community? The cause of the doubt is that if he was obligated jointly with any other person than his wife without expression of solidarity, he would be considered as having bound himself only for his own proportion. Nevertheless, it is commonly held that even when the husband has bound himself jointly with his wife without expression of solidarity, he is obligated for the whole, and remains, after dissolution of the community, debtor for the whole as regards the creditor. The reason is that when a wife becomes a party to the obligation of her husband, the intention of the parties is to obtain greater security to the creditor rather than to divide and diminish the liability of the husband." But with regard to the obligation of the wife he says, in paragraph 731: "The wife, after the dissolution of the community, whether she has accepted the community or renounced it, continues to be debtor for the whole amount (as respects the creditors) of the debts of the community which proceed from her act; that is to say, those which she herself has contracted, whether before or after the marriage, and those of suc cessions which have fallen to her." He then adds:

"Par. 732. When the wife during the marriage has not contracted alone, but jointly with her husband, without expression of solidarity, though the husband be regarded as bound for the whole, the wife is not considered as be

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ing bound for anything but the half, and is only debtor as regards the creditors for half.

"Par. 733. In regard to all other debts of the community which the wife has not herself contracted, and for which she is only bound in her character of member of the community, the wife, after the dissolution of the community which she has accepted, is only debtor for a moiety as towards the creditors." So, in his Coutumes D'Orleans, introduction to title 10, the same author says:

"Par. 136. The husband is held in solido towards the creditor, not only when he has contracted alone, but even when he has bound himself with his wife without expression of solidarity, although it would be other wise if he had so bound himself with another person."

"Par. 138. The wife is held in solido towards the creditors for debts of the community which proceed from her act, that is to say, for those which she has herself contracted before the marriage,—and for those which grow out of successions which have fallen to her. She is also held in solido for debts contracted by her husband when she has bound herself in solido with him. If she has bound herself for his debts, without solidarity having been expressed, she is held, even towards the creditor, only for half."

See, also, Touillier's Commentary on the Code Napoleon, tit. 13, pp. 310, 313; Duranton, tit. 6, 296, par. 197, (tit. 10, French Ed.) and tit. 8, 222, par. 491, (tit. 14, French Ed.;) Zachariæ, tit. 3, pp. 503, 504, § 520, art 1, par. 2. In accord with these views of the text-writers the supreme court of Louisiana, in the case of Saulet v. Trepagnier, 11 Rob. 266, said: "The obligation which the widow incurs by her acceptance of the community is an additional security for the creditors, but they have the right to look to the heirs and direct representatives of the husband for the whole debt, because it is with him they trusted, and it is he whom they trusted. Ejus solius fidem secuti sunt, says Touillier, vol. 13, No. 233; 2 Pothier, Traite de la Communaute, No. 719. But although the creditors have this option, the widow who has accepted the conjugal partnership or community becomes absolutely and personally bound to them for one-half its debts."

In the present case the debt which is sought to be enforced against the estate of Mrs. Henderson is not one which she contracted herself before the marriage, nor did it grow out of successions which had fallen to her, nor did she bind herself in solido therefor with her husband, nor did the husband in contracting the debt use any words which bound his wife solidarily with him, if in his power to do so. It is therefore clear, upon the authorities cited, that she was not bound in solido with her husband, during the community, or, after its dissolution, with his succession, for the debt evidenced by the note of Henderson & Gaines. In fact, the petition filed in this case, and the judgments rendered by the circuit court, are based on this view. She was therefore not bound in solido with Gaines and Relf, the co-debtors of her husband. The payments made on the note by them after the death of her husband should not, therefore, have been admitted in evidence to interrupt the prescription of five years, which began to run in her favor upon his death. The only authority not already noticed, to which we have been referred by counsel for defendant in error to show that Mrs. Henderson was bound in solido with Gaines and Relf for the debt of Henderson & Gaines, is the case of Edwards v. Ricks, 30 La. Ann. 928. In explanation of this case it may be stated that in Louisiana the succession of a deceased wrong-doer is liable for the actual damage resulting from his torts. Article 25, Code Pr. The suit was brought by Edwards to recover damages for a trespass upon his property,*and an assault on his family, committed by Ricks and one Vernado. Before suft brought Vernado had died, and the action was against Ricks and the widow and the two children and heirs of Vernado, who, it was alleged, had taken possession of his property without inventory, and were therefore liable for the

obligations of the deceased trespasser. The judgment of the lower court was against Ricks for $5,000, and against the widow of Vernado for $2,500, and against his two heirs for $1,250 each; “the judgment, "as the report states, “being in solido." Upon appeal the supreme court of Louisiana decided that while Ricks might be held for exemplary damages, the widow, as well as the heirs of Vernado, were liable only for the actual damages, and accordingly affirmed the judgment against Ricks for $5,000, which included exemplary damages, and rendered judgment for the actual damages "against the widow and heirs of Vernado in the sum of three hundred dollars, [in solido with the judgment against Ricks;] said three hundred dollars to be paid" one-half by the widow, and one-half by the two heirs jointly. In delivering its opinion the court said: "Ricks and the estate of Vernado, represented by the widow and heirs, are sued as co-trespassers and solidary obligors. To the extent that the estate of Vernado is liable, the judgment against it would be solidary with that against Ricks, but would divide itself as follows: one-half against the widow, and one-half against the two heirs jointly."

It is to be observed that the case did not involve a construction of article 3552 of the Civil Code, which we now have under consideration, and is not authority to support the contention of the defendant in error that a payment by Gaines & Relf interrupted the pre-emption in favor of Mrs. Henderson. And whatever the court may have said about the estate of Vernado being liable in solido with Ricks was merely obiter, for no judgment was asked or rendered against the estate, and it is clear that under articles 1425 and 1427, heretofore cited, the obligation resting upon Ricks and the widow and heirs of Vernado was not a solidary obligation; and the court did not treat it as such, for it rendered a separate judgment against* Ricks for one amount, a joint judgment against the two heirs of Vernado for a different amount, and a third judgment against the widow for still another amount; and the judgment against Ricks was made up of $4,700 exemplary damages, and $300 actual damages, while the judgments against the widow and heirs were only for the actual damages. It seems plain, therefore, that the court, by calling the obligation and the judgments solidary, merely meant that a payment made by one of the judgment debtors would pro tanto exonerate the others towards the creditor. But this quality, as we have shown, is not the only one necessary to an obligation in solido as defined by the Civil Code. The debtors must be "all obliged to the same thing, so that each may be compelled for the whole." These parties were not under the same obligation, either in character or amount, and were not all bound for the whole. Nor do we think it is a reasonable construction of article 3552 of the Civil Code to hold that when two persons are jointly bound, one for the entire debt, and one for only a part of it, the acknowledgment of the latter interrupts the prescription as to the former. Therefore, as the circuit court admitted incompetent evidence upon a vital point of the case against the executor of Mrs. Henderson, and when requested by him refused, by its charge to the jury, to counteract the effect of the evidence thus admitted, the error is fatal to the judgment in favor of the defendant in error against the executor of Eleanor Ann Hender

son.

The judgment against Wm. H. Henderson, executor, is therefore reversed, and the cause remanded to the circuit court, with directions to grant a new trial; and the motions to dismiss the writs of error in the cases of Howard L. Henderson, Wm. H. Henderson, Warren N. Henderson, and Victorine S. and M. C. McCarthy are granted.

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*292

*291

(115 U. S. 291)

HAZLETT v. UNITED STATES.

Filed November 2, 1885.

CONTRACT-TRANSPORTATION BY BOAT OF OFFICERS AND SOLDIERS-INDIAN SUPPLIES. A person who, by a contract made with him by the quartermaster's department oʻ the army in behalf of the United States, agrees to furnish all the steam-boat transportation required by the United States for officers and soldiers between certain places, and to certain Indian posts and agencies, during a certain time, and to "receive from the officers or agents of the quartermaster's department all such military, Indian, and government stores, supplies, wagons, and stock as may be offered or turned over to him for transportation by said officers or agents of the quartermaster's department, and transport the same with dispatch, and deliver them 15 to the officer or agent of the quartermaster's department designated to receive them," at a certain rate, is not entitled to claim compensation for Indian supplies, never in charge of the quartermaster's department for transportation, transported between places named in the contract by another person under a contract between him and the commissioner of Indian affairs; although during the same time some Indian supplies are delivered by the commissioner of Indian affairs to the quartermaster's department, and by that department turned over to the claimant for transportation at the rate specified in his contract.

Appeal from Court of Claims.

* The foundation of this action is a written agreement of February 17, 1870, between the United States and the appellant, who was claimant below, in relation to the transportation by him, at specified rates, of military, Indian, and government stores, supplies, wagons, and stock. *Full compensation was made for all services actually performed by him. But he contends that he was entitled to transport certain Indian stores and supplies, which were delivered, against his protest, to the Northwest Transportation Company for transportation to posts and agencies included in his contract. The supplies and stores last named were transported under a written contract made, without advertisement, by the commissioner of Indian affairs, in September, 1870, at higher rates than those allowed the claimant. If they had been transported by him under his contract, he would have realized a large profit, after deducting what it would have cost to do the work, and also a reasonable sum for being relieved from the care, trouble, responsibility, and risk attending such service. Although fully prepared and offering to transport them, the officers of the Indian bureau refused to turn them over to him. This he contends was a breach of his contract. The court below adjudged that the law was with the government, and dismissed his petition. He now insists that the judgment proceeded upon an erroneous construction of his contract, and was also inconsistent with the practical interpretation given to its provisions by officers of the government immediately charged with its execution T. H. N. McPherson and Enoch Totten, for appellant. Sol. Gen. Goode, for appellee.

*Mr. Justice HARLAN, after stating the facts in the foregoing language delivered the opinion of the court:

We are of opinion that the claimant has no cause of action against the United States. The contract did not obligate the government to deliver to him, nor did it bind him to receive, for transportation during the period designated, all Indian supplies or stores in the hands of its agents or officers of whatever department or branch of the public service. It was made with the claimant by an officer of the quartermaster's department under directions from the quartermaster general of the army. By its first article he became bound to furnish all the steam-boat transportation required by the United States for officers and soldiers on the Missouri river between certain named places, and for posts or Indian agencies between certain other named places, at any time from March 20, 1870, to October 31, 1870. He agreed to "receive, at any time during that period, from the officers or agents of the quarter

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master's department at St. Louis, or any point between St. Louis and Fort Benton," mentioned in the tabular statement annexed to the written contract, "all such military, Indian, and government stores, supplies, wagons, and stock as may be offered or turned over to him for transportation, in good order and condition, by said officers or agents of the quartermaster's department, and transport the same with dispatch, and deliver them in like good order and condition to the officer or agent of the quartermaster's department designated to receive them," etc.

These words define the nature and extent of the obligations assumed by the contractor. It was entirely competent for the quartermaster's department to enter into an agreement whereby the contractor became bound to receive from its officers or agents all such military, Indian, or government supplies as they might deliver to him for transportation; but it had no authority, without reference to the views of the interior department, and of the officers having special connection with Indian affairs, to control the transportation of Indian supplies or stores of every kind. Nor did the quartermaster's department assume to exercise such authority, for it only stipulated with claimant that he should receive and transport such supplies and stores as were turned over to him by its officers and agents. As, therefore, the claimant was not bound to receive Indian supplies or stores turned over to him for transportation by the Indian bureau, the employment by the commissioner of Indian affairs of others to effect the transportation of Indian stores and supplies,-which were never, so far as the record discloses, in charge of the quartermaster's department for transportation,-was not an infringement of his legal" rights. There is no escape from this conclusion, unless it be that the quartermaster's department had, under the law, the sole power of making contracts for the transportation of Indian supplies and stores. But that proposition cannot be maintained.

It is also contended that the government, in view of the conduct of its agents subsequent to the making of the contract with claimant, cannot now be permitted to dispute the proposition that he was entitled by his contract to receive for transportation, during the period designated, all Indian supplies and stores, by whatever department held, which were to be sent to the several Indian posts or agencies designated in that contract. This proposition arises out of the following facts found by the court of claims:

"It does not appear that either the commissioner of Indian affairs or the secretary of the interior had actual knowledge of the fact that the contract in suit existed with the claimant relating to the transportation of Indian stores and supplies by or through the officers of the quartermaster's department, nor did they expressly authorize Gen. Rucker to enter into a contract for the transportation of Indian stores or supplies, nor did they ratify such contract, unless its ratification be implied from the following facts and circumstances: The Indian bureau directed that two lots of Indian supplies be forwarded in April and May, 1870, amounting to 221,242 pounds, which was accordingly done by Quartermasters Gilliss and Fury, at Sioux City, Iowa, turning them over to the claimant for transportation, and they were by him transported (under his contract with the quartermaster's department to include the transportation of the Indian supplies) to Whetstone and Big Cheyenne agencies, and the Indian bureau reimbursed the war department for this transportation. The commissioner of Indian affairs and the secretary of the interior directed the secretary of war, June 21, 1870, to turn over the army subsistence stores, collected at the instance of the commissioner of Indian affairs for the Indians at Forts Rice, Stevenson, Buford, and Shaw, to the Indian agents at the Grand River and Fort*Berthold agencies, and that the cost of transporting the stores from the forts to the agencies would be paid by the Indian bureau. The claimant transported, September 27, 1870, 82,720 pounds of Indian stores and supplies from Fort Rice to Grand River agency, for which v.6s.c.-4

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