Kenner v. Peck

| La. | Oct 15, 1847

The judgment of the court was-pronounced by

SiiiDEM,, J.

The plaintiff sues as holder of a promissory note made by the-defendant to the order of Taylorr, Gardiner Sf Co., and by them endorsed, payable at their counting-house in New Orleans. There was judgment for thff plaintiff, and the defendant has appealed. •

The first point urged by the defendant is, that the court below impx-operly refused him time to obtain the answers of the plaintiff to interrogatoiies propounded. The purport of these intei’rogatories was, to ascertain fi'om the plaintiff whether Taylor, Gardiner & Co. were not the real owners of the note,, with a view, as the defendant contends, of enabling him to establish a compensation, or set-off, of claims due to him by Taylor, Gardiner & Co. But the plea of compensation was framed in a manner so loose and defective, giving no specification whatever of the nature of the offsets, that no evidence would have been admissible under it, and the interrogatories, if taken as confessed, would have been impertinent to the issue really made by the pleadings, which amounted in legal effect to nothing mox’e than the general issue, and a question of prescription. There was therefore no error in the ruling of the court. See C. P. 350, 367. White v. Moreno, 17 La. 371" court="La." date_filed="1841-01-15" href="https://app.midpage.ai/document/white-v-moreno-7160596?utm_source=webapp" opinion_id="7160596">17 La. 371.

The plea of prescription was properly disregarded. Five years had not elapsed from the maturity of the note to the date of the service of citation.

The appollant contends that interest should not have been allowed from the maturity of the note, but only from the day of protest. The note stipulates interest at ten per centum per annum after due, until paid. It is made payable at the counting-house of Taylor, Gardiner & Co., and was protested some years after maturity. The protest is the only evidence offered of a formal presentment at the stipulated place of payment. But a letter of the defendant addressed to the plaintiff is in evidence, which recognises the indebtedness, in reply to a letter of the plaintiff, and promises payment. The tenor of this letter justifies the inference that the defendant had provided no funds at the place of payment, and, coupled with the stipulation for interest after due till paid, justified the allowance of interest from maturity.

Judgment affirmed.