Benson v. Smith

2 La. 102 | La. | 1830

Martin J.

delivered the opinion of the court. This is an action on a promissory note. The defendant had a verdict and judgment. The plaintiff made an unsuccessful attempt to obtain a new trial, and appealed.

The execution of the note was admitted, but the defendant drew the following facts from the plaintiff by interrogatories. The note was given for the price of a lot on the side of Red River, opposite to Alexandria, where the plaintiff had laid out a tract 'of land into lots, several of which he sold. The building of a bridge across the river was, at that time, spoken of. The plaintiff, as well as many others, believed it would take place, but this was not made a part of the contract in the sale of the lots to the defendant.

The plaintiff proposed to the defendant afterwards to rescind the sale, on the latter paying all expenses, which he promised to do : And the plaintiff thinks they went together to the court-house to effect this, but not finding the judge there, they parted without doing it; and the plaintiff continued willing to have it done, till his departure from the Country, about three years ago, but the defendant never renewed the proposition, or evinced any disposition to avail himself of it.

A mutual understanding or agreement between the obligor and obligee of a note, to have the contract for which it is given, rescinded, and the note cancelled,will be considered binding, altho’ omitted or neglected to be actually carried into effect; and a recovery on the note will be withheld

The case has been submitted to us without argument, and it does not appear to us the jury erred. The contract on which the note was given, appeared to us to have been rescinded by the mutual consent of the parties, and a new one entered into, by which the defendant bound himself to pay the expenses attending the sale.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.