15 La. 496 | La. | 1840
delivered the opinion of the court.
This case is now before us on a rehearing. We have carefully revised our former decision, and after a renewed investigation of the points of fact and of law, submitted to our reconsideration, we have come to a different conclusion.
Plaintiff, as holder of a promissory note made to his order, signed “ Mondelli & Reynolds,” alleges, that the defendants are bound, in solido, for the payment of said note, and prays judgment accordingly; he also prays for general relief. Mondelli alone having been cited, filed an answer, in which, after admitting the signature, he denies his liability, in solido; the firm of Mondelli & Reynolds being a particular partnership. On these issues, the parties went to trial, and the judge of the City Court having given judgment in favor of the plaintiff against Mondelli, for the whole amount of the note, the defendant took the present appeal.
An admission which we find in the record, by which it is admitted that a certain witness could prove that Mondelli & Reynolds were particular partners, renders it unnecessary to notice a bill of exceptions taken to the opinion of the court, refusing to grant a continuance applied for by defendant’s counsel, on the ground of the absence of a witness who was to prove the same fact.
On the trial, plaintiff introduced a witness to prove the consideration of the obligation, and that the same was made by Mondelli, and for his benefit. The testimony was objected to by defendant, on the ground that plaintiff, in his petition, prays for judgment against Mondelli, insólido, as a member of the firm of Mondelli & Reynolds, and that evidence could not be admitted to prove what was not asked for in the petition. The judge a quo, received the evidence, and the defendant took his bill of exceptions.
We think the city judge did not err. It is true the plaintiflj in his petition, seeks to obtain a judgment against Mondelli,
. . Under this view of the question, we think that on the merits, the judgment of the City Court is sufficiently supported by the evidence. Mondelii signed the obligation in r J ° ° the name of the firm.; its consideration was for bricks sold him by the plaintiff; it is not even shown that Reynolds ever had any knowledge of the contract. A letter signed by Mondelli, and read in evidence without objection, proves also that , , . _T J , , , , . he was to pay the note sued on. He asks therein the plaintiff’s indulgence, speaks of his prospect 6f being able to pay
It is, therefore, ordered, adjudged and decreed, that the judgment of the City Court be affirmed, with costs.