102 So. 513 | La. | 1924
On March 31, 1923, plaintiff brought suit against defendant on seven promissory notes of $45 each, the first thereof reading substantially as follows:
"(Rent Note) Bogalusa, La., Oct. 7, 1922.
On March 1st, 1923, I * * * promise to pay to the order of Jasper Bosco, forty-five dollars, for value received, with 8 per cent. interest per annum * * * from maturity until paid, and 15 per cent. attorney's fees if not paid when due and placed with an attorney for collection. Payable at First State Bank, Bogalusa, La.
"[Signed] D.A. Crain.
"[Indorsed] Jasper Bosco."
So that when the suit was filed (March 31, 1923) only thefirst note had matured according to the tenor thereof. But plaintiff annexed to, and made part of, its petition a certain lease identified with said notes, according to which Jasper Bosco, the payee and indorser of said notes, leased to *429 defendant, the drawer of said notes, certain premises for a term of 12 months, beginning October 1, 1922, and ending September 30, 1923; all for a rental of $45 per month, payable monthly in advance, and represented in part by the notes herein sued upon. In which said lease it is stipulated that failure to pay any one of said notes at maturity shall cause all remaining notes to mature immediately and authorize the holder thereof to proceed at once to collect the entire balance due, together with reasonable attorney's fees.
It is further admitted that said lease was a sublease, said Jasper Bosco having himself leased said premises from one Pizzolato, the owner thereof; that prior to the maturity of any of the notes herein sued upon said Bosco had defaulted upon his lease with said Pizzolato; that the latter had thereupon re-entered the premises and deprived defendant of all further use thereof (unless under a new lease with himself.)
In Sadler v. White, 14 La. Ann. 177, this court said:
"If the consideration of the note had not failed at the time of its transfer, the maker cannot set up as a defense that the holder knew that there might be offsets against it."
In Bank v. Cason, 39 La. Ann. 865, 2 So. 881, the court said again:
"If it were known to the transferee of a negotiable * * * note, acquired for value and before maturity, on taking it that the consideration was future and contingent, and that there might be offsets against it, this would not make him liable for the equities between the original parties. * * * It cannot affect the negotiability of a note that its consideration is to be thereafter realized, or that from some contingency it may never be enjoyed."
In Martel v. Lafayette Sugar Refining Co.,
"This doctrine [above stated] was affirmed in Pavey v. Stauffer, 45 La. Ann. 353, 12 So. 512, 19 L.R.A. 716, and again in Marx v. Frey,
137 La. 948 , 958, 69 So. 757, and is in accord with the general law of Negotiable Instruments. See 8 Corpus Juris, 509, § 718, and 3 Ruling Case Law, 1067, § 273."The holder of a negotiable rent note has been held entitled to recovery thereon, even where circumstances have obliged the tenant to pay the rent a second time. Marinoni v. Levy, 9 Orleans Appeals, 254, citing Barelli v. Szymanski, 14 La. Ann. 47, and Tulane Improvement Co. v. Green Photo Co.,
124 La. 619 , 50 So. 601."
"True, in this case, the notes bear the mark `rent note,' but without any other clause or words declaring (them payable) `as per contract,' as appeared in Continental Bank Trust Co. v. Times Publishing Co.,
142 La. 209 , 76 So. 612, L.R.A. 1918B, 632. It is, however, admitted in the statement of fact that plaintiff knew at the time it acquired the notes that they represented the rent due on a contract of sublease in which the defendant *431 was the lessee; that they were received by plaintiffwhile attacked to a copy of said lease; were given inconnection therewith and subject to said contract." (Italics ours.)
The words which we have italicized are (we think) a misconstruction of the agreed statement of facts which, in so far as pertinent, is as follows:
"(3) That said notes represented the rent due on a certain contract of sublease between Jasper Bosco and defendant for premises described in the pleading, beinggiven in connection with and subject to said contract." (Italics ours.)
"(5) That plaintiff actually knew the above facts at the time of the negotiation of said notes, and receivedsaid notes while attached to a copy of said lease." (Italics ours.)
"Our interpretation thereof is that whilst it admits that the notes were received by plaintiff while attached to a copy of the lease, yet it was not intended to admit, and does not admit, that same weregiven to plaintiff by Bosco `subject to said contract' but does admit only that same were given by defendantto Bosco `subject to said contract.' Otherwise plaintiff would simply have been admitting itself out of court; for were it admitted that plaintiff had received said notes `subject to said contract,' there would then have been no room for controversy herein, and the case would simply have decided itself."
In the original opinion handed down through Mr. Justice Provosty, the court held the notes to read in the first sense, viz., as absolute promises to pay $150 (value to be received asper contract); whilst on rehear- the court, through Chief Justice Monroe (Mr. Justice Provosty dissenting), held the *432 notes to be promises (for value received) to pay $150 as percontract, saying:
"A promise is not unconditional which is followed, in the same sentence, by a stipulation to the effect that it will be fulfilled, as per another contract, whereby the payment is made contingent upon the nonhappening of fortuitous event."
In this connection, see Tyler v. Whitney Central Trust Sav. Bank (our No. 26255)
Accordingly, it will be seen that the whole matter hinged upon whether the "as per contract" was connected with, and qualified,the promise to pay; or was connected with, and merely amplified,the acknowledgment of value received. And the court merely held that the "as per contract," in that instance, qualified the very promise to pay. Apart from this, the case decided nothing new or different from what had been repeatedly decided before. And the case is authority for no other proposition than that contained in the language and holding quoted above from the opinion of the Chief Justice; for the case clearly recognizes the doctrine that a mere statement in a note that it is a rent note, and that the consideration of the note is an installment of rent to become due in the future, does not destroy the negotiability of such note.
The situation of holders of rent notes is perhaps somewhat analogous to that of holders of mortgage notes; and as transferees of a credit they may be entitled to such accessories as the suretyships, privileges, and mortgages by which the notes are secured (R.C.C. 2645). But such accessories are not negotiable in the same sense as the notes themselves, and are generally, or at least often, open to the equities between the original parties. Hillard v. Taylor,
Hence, had defendant pleaded in limine prematurity of the suit as to the six notes which had not matured upon their face, as he might have done, we would have maintained his plea and dismissed plaintiff's suit *434 as to these six notes. But defendant has made no such plea, and we must therefore give judgment on all seven notes according to their tenor. But since the maturity of the six notes was not advanced by failure to pay the first, it follows that said six notes bear interest only from their respective maturities; and judgment will be rendered accordingly.
On $45 from March 1, 1923, until paid.
On $45 from April 1, 1923, until paid.
On $45 from May 1, 1923, until paid.
On $45 from June 1, 1923, until paid.
On $45 from July 1, 1923, until paid.
On $45 from August 1, 1923, until paid.
On $45 from September 1, 1923, until paid.
Together with 15 per cent. attorney's fees upon the whole, and all costs.