Cotton v. Union Bank

15 La. 369 | La. | 1840

Martin, J.,

delivered the opinion of the court.

The defendants are appellants from a judgment by which the plaintiff recovered the amount of a promissory note, which he alleges was sent to the defendants for collection, by his agent, the cashier of the Commercial and Rail-road Bank of Vicksburg; and which was not protested in due time, by which the plaintiff lost his recourse against the endorsers who were at the time good and solvent.

The defendants do not deny their liability, but urge, that the plaintiff is a stranger to them, as they received the note from the bank at Vicksburg, for collection, and which is largely indebted to them.

The plaintiff’s name is not on the note, and the testimony shows that it was lodged in the bank at Vicksburg, by one Lewis .Hord, who now appears as the last endorser thereon : a special endorsement by the cashier of the Vicksburg Bank, to the cashier of the Unioh Bank, at New Orleans, on sending the note to the latter for collection, having been stricken out. There are two blank endorsements before that of Hord, the first of which was that of the payee. The plaintiff contends that his possession of the note with the blank endorsement of the payee, shows that he is the owner of it; and that the evidence shows the Bank of Vicksburg received it solely for collection, and has no interest therein. His counsel, therefore, insists, that the Bank of Vicksburg, being without interest in the note, acted as the agents of the owner, and that by delivering the note to the plaintiff, they have recognized him as the owner. The argument drawn from the circumstance of the defendants being creditors of the Vicksburg Bank cannot avail them, .because this was not pleaded, the defence being a general denial only. A witness swears that the Vicksburg Bank was indebted to the defendants at the time he deposes, but not before the inception of the suit, nor at the time the answer was filed.

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