The opinion
On Rehearing.
His Honor Judge Frank McGloin
delivered the opinion and decree of the court in the words and figures following, to wit;
After hearing a second argument in this case, and giving to the same a second and very careful examination, we have not been brought to change the opinion originally formed.
The defendants have placed their reliance in the efforts to secure the reversal of the first decree, upon the following propositions: 1. That the ordinance 2066 was in conflict with the general laws of this state regulating assignments of incorporeal rights and subrogation, that the general laws cannot be set aside or affected by municipal legislation. 2. That the bond executed by the defendant Brown was to the City of New Orleans, and that no liability existed upon said bond to third persons, except under the provisions of section 4, Acts of 1870, No. 5; and that section gives to third persons only such damages as may be actually proven.
*378 1st. The general laws relied upon by appellant are articles 2642 et seq., La. C.C. These provisions of law do not establish any particular manner of giving notice of the assignment of incorporeal claims, and ordinance No. 2066 of the City of New Orleans can not be accused of being in actual conflict with the state law.
These articles of the code of Louisiana affect no matter of public policy and parties may take themselves from under their operations by contracts express or implied, La. C.C. Art. 11, 1964, 1967, Alford vs. Tiblier, 1 McGloin 151 .
Where there are but one or at all events only a few transactions concerned, the informality of transfer and notice which find their justification in La. C.C. Arts. 2642, etc., is doubtless for the best. But, where, as must be the case in the financial management of a great city, or even of private corporations doing extensive business, the number of its creditors for amounts of all sizes may render this informality a source of intolerable annoyance, and even a dangerous confusion. There is no reason why such corporations, or for that matter individuals similarly circumstanced, may not protect themselves from such perils or inconveniences by stipulating against any conventional transfer whatever, and impose upon assignments any restrictions or forms which are reasonable. When this has been done, the party contracting with said corporation or individual cannot complain of what he has fully agreed to; and as to third persons they can acquire no greater right than those that are created by the conventions and reside in their assignors.
Municipal legislation is the expression of municipal will. In its character as a portion of the law of the land, it is presumed juris ex de jure to be known to every person residing within the area over which it operates. The ordinance No. 2066 was a public declaration that the City of New Orleans after its date, would not enter into contracts which could be assigned by word of mouth alone, and with only verbal and informal notice of transfer. There was in the way of this expression of municipal will, and of its enforcement no law prohibitory *379 in its nature; and no principle of public policy was violated. Every one who contracted with said city was charged with knowledge of this ordinance, as it was applicable to all the city engagements. The municipal will in connection with its contracts being known to parties dealing with the corporation, entered into such contracts and formed part of them. The principle would be the same where a bank had adopted rules regulating the reception of deposits or the making of discounts, and these rules were brought to the knowledge of customers who made no objection — certainly in such a case, the regulations would enter by implication into the contracts, etc.
So in the case just supposed, a third person familiar with these regulations, to whom the depositor had transferred his rights or claims would be equally held to the observance of the forms or requirements formulated by them.
We do not mean to say that actual notice of the special features of a convention is necessary in order to bind third parties acquiring rights thereunder. On the contrary, they are themselves bound to inquire and learn at their own peril the exact and real character of the contract under which they acquire. But in this instance, the assignee, as one subject to the municipal legislation of the City of New Orleans is chargeable with full knowledge of ordinance 2066, and its contents.
Nor, is it alone upon the grounds just stated that our opinion in this case can be justified. Even without express mention, municipal corporations are vested with power to enact such by-laws and ordinances as are necessary or proper for the purpose of accomplishing effectively the duties imposed, provided such by-laws or ordinances are not in contravention to prohibitory laws nor contrary to public policy. The administration of its own finances, the entering into and performance of contracts for work or things essential, the disbursement of its moneys — all these things are necessarily under its control and therefore constitute proper subjects for its legislation, in default of constitutional, statutory prohibitions. Ordinance No. 2066 is therefore binding upon every resident of New Orleans, as a municipal law upon a matter that is *380 within the scope of municipal authority to enact, for the City of New Orleans has as much right by its ordinances to exempt itself from the operation of La. C.C., Art. 2642 et seq., as private individuals or corporations have to do so by express stipulation. If those articles are not so prohibitory as to preclude themselves from the operation or control of private conventions, they are equally inoperative in the matter of. restraining municipal corporations from adopting necessary and proper by-laws regulating assignments and notices thereof, so far as such corporations themselves are concerned, and no further.
2nd. We do not consider that the language of section 4 of Art. No. 5, extra session of 1870, page 10, takes the case now under consideration from under the operation of the general rules of evidence. That language, in connection with the recovery to be had by the delayed creditor is as follows— “May recover damages therefor against said officer and surety for such amount as they may establish on the trial of such cause.” In no case are the counts authorized to condemn a defendant in favor of a plaintiff where the latter does not establish his case upon the trial, except when the law itself specially fixes penalty or damages as is done in some matters.
There are, however, more ways of establishing a claim than by direct and positive proof. Circumstantial evidence will alone often justify a condemnation, and legal presumptions may have the same effect. La. C.C. 2284, 2285, 2287, 2288.
So, in the particular case under consideration, as in others, the rule of principle of onus probandi applies, and a plaintiff may be exused from going further than to create a presumption that his claim is just, and so cost the burden of proof upon the defendant.
We had occasion in the case of Monteguet vs. Waggaman, 1 McGloin 69 , to consider this question of proving damages against a sheriff who had released property which had been levied upon, under a writ in his hands. We there examined fully the authority and concluded the burden of proof shifted from the plaintiff, rested upon the defendant the moment it *381 was shown that the writ of the former was removed by the officer’s fault from the property of the debtor. The logic of that case is fully applicable to this. Here, as there, we have a public officer, held by express law to do certain things, for those requiring their services. Here it is shown that had defendant Brown done his full duty in the premises the claim of the plaintiff would have been satisfied, as there it was shown that the sheriff had in his hands property sufficient to satisfy the writ, and out of which, but for the release, it could have been satisfied. There we held, that having shown the loss of a certain and immediate means of securing payment, and this by the fault of a public officer, the injured party was not compelled to go further and establish the fact it had become impossible to seize and sell other property. In this instance, by purity of reason we must hold that having shown that his claim was not paid in due time and order because, through the fault of defendant Brown, the money appropriated to meet it had gone to another, the plaintiff is under no necessity of going further to prove that at no time in the future will he be able to make good his claim.
There is also another consideration which is not without weight. La. C.C. 2315 declares that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it, etc.”
In this case, but for the act of defendant Brown, plaintiff would have had his money paid in due course under the ordinance adopted for the liquidation of this claim. It seems the letter and spirit of article 2315 would not be complied with, if instead of making defendant do for plaintiff what would have been done for him by the city, but for the fault complained of, which is to pay his claim in cash and without further trouble or delay, we compel him before seeking relief against defendant to embark upon a tedious and doubtful litigation against either the City of New Orleans or the Citizen’s Savings Bank. This would not be compelling defendant to repair the damage. If at the end of a long and laborious lawsuit either the City of New Orleans or said bank can be *382 forced to pay, it is more exigible to impose this labor and annoyance upon the defendant whose fault has given birth to the necessity thereof.
We see no reason therefore, which would justify us in rendering a decree herein different from that originally delivered and it is accordingly ordered that said original decree remain undisturbed.