15 La. Ann. 694 | La. | 1860
Plaintiff brought this suit in January, 1856, as holder, against defendants, as maker and endorser of a promissory note for five hundred dollars, protested at maturity, about a year previously (February, 1855,) for non-payment.
Issue was joined by both defendants within a month after suit brought.
Corcoran filed a peremptory exception that the note had been issued by him to Mr. John Slidell, and endorsed by Davern for his (Corcoran’s) accommodation ; that the same had been paid to Mr. Slidell, the holder, at maturity, by plaintiff, who was Corcorans partner in the Daily Delta newspaper, and for account of Corcoran, who was owner of one-fourth of Said paper; that such payment had extinguished the note ; and if plaintiff had any claim at all, if was a mere personal claim against Corcoran, in settlement of partnership account, for so much paid ; (hat he, Corcoran, had never been able to bring liis partner, the plaintiff, to account, although frequently demanded ; and that he had instituted a suit against him, No. 7174 of the docket of the Fifth District Court of New Orleans, for settlement of partnership, which suit was still ponding'; and pleaded the said suit in bar of tho present action.
Davern filed for answer, the plea of want of notice of protest of tho note sued on.
The cause remained untried, upon these pleadings, until May 30th, 1859, when, on motion of counsel of plaintiff, and on suggesting- the death of defendant, Corcoran, tho suit was discontinued as to said defendant.
On the same day, the cause was continued as to the other defendant, Davern, upon a written consent to submit the same, upon the testimony to be furnished by the parties, and taken in the clerk’s office by the 6th June, 1859.
On the same day, May 30th, 1859, after the entry of the order of continuance in the minutes, and after the agreement to submit was signed, but before any evidence was taken, defendant, Davern, filed a supplemental answer, with leave of
Much evidence, parol and documentary, was taken by the parties under their agreement, from the 3d to the 7th June, 1859, inclusive. All of this evidence was received without objection, if we except the record of the suit referred to in Corcoran’s peremptory exception, as to which we find the following memorandum : “ The defendant offering in evidence the transcript from the Fifth District Court entitled D. Corcoran v. J. P. Heiss & W. G. Kendall, the same is objected to on the part of plaintiff, who reserves his bill of exceptions if the same is received.” As no ground of objection is stated, however, this cannot, under the settled practice of this court, be noticed as an exception to evidence. The whole oí the depositions of witnesses, and documentary and record evidence thus taken, is copied in this transcript, and constituted the evidence upon which .the cause was submitted to the District Court.
Judgment was rendered in favor of plaintiff, and defendant, Davern, appeals.
It is proved that the note, at maturity, belonged to John Slidell, to whom it had been originally given for money lent by him to Corcoran; that Shdell was also creditor of Heiss, the plaintiff, in a note of the latter for six thousand dollars, secured by a bill of sale of the Delta newspaper ; that Heiss’s note fell due the next day after the note of Corcoran; that Heiss’s note was renewed by Mr. Slidell for the sum of $4000 in Heiss.and Kendall’s joint and several note, at Jleiss’s solicitation ; that in renewing said note, Heiss being a partner of Corcoran in the Della, Mr. Slidell insisted that Mr. Heiss should assume the payment of this note of Corcoran, which was then under protest; that accordingly, Heiss gave Slidell his individual note, payable the 1st of January, 1856, for the amount of Corcoran’s noto; that Slidell retained possession of the note now sued on, as collateral, until Heiss’s note aforesaid was paid ; when he delivered it to Heiss.
It is also proved, that Denis Corcoran sued John P. Heiss and Wm. G. Kendall for settlement of a partnership which his petition alleged to exist between himself and the said parties, in the newspaper and job offices of the New Orleans Daily Delta and the New Orleans Weekly Delta, in the proportion of one-half belonging to Heiss, one-fourtli to Kendall, and one-fourth to Corcoran. The petition sets forth that said partnership property and business is valuable and lucrative ; and that Heiss and Kendall have in their possession and control the books and accounts of the same, and refuse to pay over to petitioner his share of the profits, but have retained and appropriated the same to their own use. It concludes by a prayer for an account, &c.
The separate answer of Heiss to this petition admits that a partnership existed as alleged; and that, at the time of the institution of the suit, Corcoran owned one-fourth of the Delta; alleged various matters of defence, and prayed for auditors to examine and report on an account which Heiss annexes to his answer; which account shows a large balance to the credit of the partnership.
Kendall’s separate answer adopts the pleas of his co-defendant, Heiss, to whom he alleges he had sold out his own interest in the partnership, since the suit was instituted. Thus far, the transcript of the suit given in evidence; which would thus seem to have been still pending and undecided when the present action was tried.
The above constitutes the substance 'of the evidence given on the plea of payment and exception of partnership and litispendence filed by Corcoran and adopted by Davern. It is contended by counsel of plaintiff, in argument, that we should
Upon this point of practice, we are of opinion, that where, as here, a supplemental and amended answer has been filed by order of court, the Judge who permitted its filing cannot, proprio motu, rule it out, as not filed in time; and that where, as here, witnesses have been offered and cross-examined without objection, and written evidence offered and received without a proper and intelligible exception reserved, the party against whom such parol and written evidence has been given, cannot bo heard to object in this court to its admissibility.
It is unnecessary, in this state of facts, to determine whether this appellant, an accomodation endorser, would not have been entitled, even without specially pleading it, to have availed himself of any legal defence to the action, which had been pleaded by his co-defendant.
Upon the other plea, want of notice, we think the case is with appellant. In protesting the note, the Notary declares that he presented it for payment to the maker, through his deputy, A. Commandeur ; and he certifies that he notified the endorser, James Davern, by a letter to his address put in the Post Office, after vain attempts made to find him or his domicil by the Notary’s deputies, Barrí/ and Swiler.
On the trial, the two deputies of the Notary, Barry and Swiler, were sworn for plaintiff, and proved inquiries made by them, as stated in the certificate. But a third clerk or deputy of the Notary, Commandeur, the same named in the protest as having made demand of payment of Corcoran, being- examined, also for plaintiff', says : “ that if he had had the notice of protest to serve on Davern, he would not have thought of putting it in the Post Office. He thinks he could have found him, or his residence, with very little trouble. Davern is generally known.”
In corroboration of Commandeur’s testimony, seven witnesses, examined for defendant, two of whom are Notaries Public, testify that Davern is a man generally known ; that he has been residing for twenty years past in the neighborhood of the New Basin ; that he has been a member of the City Council; that his residence must have been known to Mr. Turner, the agent of Mr. Slidell, the holder of the note at maturity, &c. On this last fact, which is peculiarly important, Mr. Slidell himself, who is one of those witnesses says : “ Witness is satisfied that Mr. Turner must have known the place of residence of Mr. Davern. Davern, the witness would suppose, was as well known as any person about town.” And John G. Burrows, another witness, who was employed in Turner’s office, says : “ Witness’s strong impression and conviction is, that Turner knew where Davern lived.” It must be observed, that Turner was dead when this cause was tried.
It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that there be judgment against plaintiff; and in favor of James Davern, defendant, with costs in both courts.
