Lambeth v. Petrovic

16 La. 315 | La. | 1840

Morphy, J.,

delivered the opinion of the court.

Defendant, being sued as endorser of a promissory note, drawn to his order by one David Vawter, answered that he had never been liable as such, and that if any liability ever existed, it had been entirely released and discharged by the act of the plaintiffs, who had granted an extension of time to the maker. Judgment was rendered in favor of the plaintiffs ; after a fruitless attempt to obtain a new trial, the defendant appealed

The record shows that suit was first brought against the maker D. Vawter, and that upon his confessing judgment, he was allowed by plaintiffs a stay of execution of one and two years. The plaintiffs attorney at law, testifies that the defendant came to him, previous to the inception of the suit against Vawter, and requested him, as counsel for the plaintiffs, to institute suit on the note, and admitted he was liable as endorser; and further, the defendant stated that time being granted to Vawter, should not affect in any way his liability as endorser: and that several times within the last year, the defendant asked him what could be made out of Vawter; uniformerly admitting his liability as endorser on the note. He adds, that the defendant gave him, not the note itself, but a memorandum of the note, on which he brought suit against Vawter. The note was protested in New-Orleans, and no evidence whatever is to be found in the record of any attempt to notify the defendant, who is a resident of the parish of Natchitoches. The plaintiffs rely entirely for their success on the subsequent promise to pay, which they say must be inferred from the conduct of the defendant, and his frequent admissions of liability. Had regular notice of protest been proved, the evidence might have sufficed to debar the defendant from any means of defence he might attempt to found on the extension of time granted to the maker ; but we cannot see in it any promise to pay the note, If any can be inferred, at all, it is certainly not that absolute . . „ . promise, made with a full knowledge of the want of notice, which in law creates a new obligation. The steps taken by defendant to have a judgment obtained against the maker, an(j his admissions of liability, show that he believed the notice to have been regularly put in the post-office in New-Orleans, though not received by him. An endorser may well, under an ignorance of the facts, consider himself liable when he is not, because notices need not be personally servecJ. It is true that affirmative proof of an endorser’s knowledge in such cases is not required, and may be inferred from th.e attending circumstances : but in the present case, we see nothing from which it can be reasonably inferred that the defendant had any knowledge that he was discharged fr°m liability by want of notice. Bayley on Bills, p. 297 and following t 12 Louisiana Reports, 467. 13 Idem., 420. 3 Kents Commentaries, 113.

endorser admit-after”the ^note ,was due and saídteSthat time given to the maker of the note should not affect his liability; was'not liable at want ofdu’e notice of Held, that his acknowiedgment did not bind him.

It is, therefore, ordered, that the judgment of the District Court, be annulled, avoided and reversed, and that ours be fol- the defendant, as in a case of non-suit; the plaintiffs and , . . , r appellees paying costs in both courts.