Kernion v. De Villier

8 La. 547 | La. | 1835

Mathews, J.,

delivered the opinion of'the court.

This suit is brought on three promissory notes, made by the defendant, payable to the order of C. F. Coulon Jumonville de Villier, and endorsed by him, &c., and are now in the hands of the plaintiff, as syndic of his own estate surrendered to his creditors.

The defendant pleaded a failure of the consideration for which the notes were given. The case was submitted to a jury, by whom a verdict was found for him; and judgment being thereon rendered, the plaintiff appealed.

It appears by the evidence of the case, that the notes in question were given in consideration of a purchase made by the defendant from the payee and endorser, as joint owners of a small sugar plantation, situated in the parish of Assumption, which was at the time of sale mortgaged to the Consolidated Association Bank, to secure the payment of a considerable sum of money. Under this mortgage the plantation was seized and sold, and the defendant consequently deprived of the enjoyment and property of the one-fourth part which he had purchased, without fault or neglect 0n his part; for although iu the contract by which he became purcbaser, be bad assumed to pay one-fourth of the debt due by the in or t gage to the bank, he could not have compelled 00 . . , the mortgage creditors to receive a part of the debt due to ¿bem; and such payment, even if it had been made, would not have prevented the seizure and sale which subsequently took place, unless the other joint owners of the plantation had also paid their proportions of the debt. It appears, also, from the Ulan filed by the plaintiff, that he. was largely indebted at the time of sale; and so was the payee of the notes, the other partner in the plantation, as shown by a schedule representing the state of his affairs. Under these circumstances which appear in the case, we ar.e clearly of opinion, that the consideration for which the notes were given ^as faüe(^ ancl that too by the misconduct or neglect of those for whose use and benefit they were made; consequently, . .. . . - _ ' the verdict and judgment of the court below are supported by law-and evidence of the case, the obligations of the promisor having become null, on account of the failure of the consideration on which his promises were made.

A failure of lion of01aKpromissorynoie, by the misconduct of the payee, "t^the will discharge his

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