22 La. Ann. 350 | La. | 1870
This suit is instituted to recover $37,721 11, the-amount of a promissory note, made and indorsed by the defendant, and1 of which the plaintiff avers he is the owner and holder. The defendant filed a peremptory exception and answer to this demand, specially denying the plaintiff’s ownership of the note, averring that it had never become an asset of the bank; that it was held by May, at that time president of the bank, for account of whom it might concern; that it was given without any equivalent or consideration, and was merely held by May to represent a transaction between himself and James E. Dunham, given during the temporary absence of Dunham, in place of another note of smaller amount, executed in favor of May for three hundred and fifty shares of the capital stock of the bank which he held as security for the payment of the note. The defendant subsequently filed a supplemental answer, reiterating his former allegations, and detailing more specifically the transaction relating to his execution of the note sued on, and praying judgment in his favor; that May be decreed to be primarily liable, and that tho amount to his credit in the bank be charged with the amount of the note; that defendant’s action in the matter be recognized as that of a trustee, and that his liability be only for the faithful performance of his trust.
Judgment was rendered in tho court below in favor of the defendant, and the plaintiff appealed. The exception, relating to the-plaintiff’s ownership of the note, was properly overruled. In a case precisely similar, recently before this court, it had occasion to pass-upon this question.
It will be proper here to examine two of the several bills of exceptions found in the record; one of which was taken by the plaintiff, the other by the defendant. After the trial of the cause had been gone into, the defendant offered to file a second supplemental answer, in which he averred the bank ivas the owner of tho note, and charged that he was induced to execute it by the fraud, covin, deceit and misrepresentations of May, in collusion with others. This amendment was
We see from the record that he knew of the failure of the bank, and of the insolvency of May, several months before he filed his first answer. He knew when the bank failed what May’s knowledge of its. affairs had been probably as well as he could have learned it since.
It has been frequently decided by this court^fchat an answer can not be amended after the case has been called for trial. 13 An. 536; 1 R. 58; 14 An. 355; 3 R. 123; 11 R. 448 ; 2 An. 905; 7 An. 576. It is. shown that by a rule of the district courts of Now Orleans, that “no-amendment shall be permitted to be made to any petition or answer after the cause has been called and set for trial.”
The other bill of exceptions we proposed to examine, is the one taken by the defendant to the admission of May’s testimony, taken, under commission, on the ground that evidence previously taken and found in the record, discloses thé fact that May is interested in the result of the suit, and can not, under the provisions of the act of thirteenth of March, 1867, testify in his own favor, unless in open court.
We are unable to see such a disqualifying interest in May as will1 exclude his testimony, t»vken under commission. We see no liability on May to pay the note, or what benefit he is to derive from the defendant’s having to pay it. We think the admission of the evidence-was proper.
Under the pleadings to which we restrict our examination of this case, we think the defendant has failed to exonerate himself from liability. The evidence of the defendant himself docs not, in om view, show that at the time he made the note, May held out inducements to him by saying anything about the value of the stock or the probability of its paying a dividend. Watson says: “To give Mr. Dunham thirty days’ grace, I did this (sign the note) as the best thing I could do.” • •
The evidence in the case goes to show that there was, no time, until a considerable period ¡after the maturity of the note, that the stock would not have sold for a sufficient amount to discharge the note. The understanding- seems to have been that the stock was to be sold within the thirty days extended for the payment of the note. May, in his testimony, swears “ that the note in question was regularly discounted by the bank, and that Watson, on his own order, received the amount. He took up, about the time of receiving the above discount, a note of James E. Dunham for upwards of thirty thousand dollars, which was among the discounted paper of the bank, and one of its assets. Dunham’s note was payable on demand; I took the usual course to enforce its payment, that is, notifying Mr. Dunham that it had been called in, and allowing him the usual grace, during which time, Watson called on me, and representing himself as Dunham’s friend, requested mo not to enforce the payment of Dunham’s note, which I declined to agree to. Watson then, or shortly afterwards, presented his own note to me as president of the bank, for upwards of thirty thousand dollars, for discount, which was accepted by me in
We are satisfied from the evidence presented that the judgment appealed from ought to be reversed.
It is therefore ordered that the judgment of the district court bo annulled, avoided and reversed. It is further ordered, adjudged and decreed that the plaintiff recover from the defendant the sum of thirty-seven thousand seven hundred and twenty-one dollars and eleven sents, with interest at eight per cent, per annum from eighteenth of April, 1867, until paid, and all costs of suit.
Rehearing refused.