Marsh v. Perry

| La. | Sep 15, 1851

The judgment of the court was pronounced by

Eustis, C. J.

In 1839, the defendant was doing business, as a merchant, under the firm of Kibbe and Perryt in the parish of Avoyelles. The firm bought of Marsh and Compton^ the plaintiffs, of the city of New York, goods and mer*670chandise which, with the charges, amounted to $1940 90, on a credit of six montjjS_ >pjle evidence shows, that this account was settled by a draft of the plaintiffs on Kibbe and Perry, which was verbally accepted by Kibbe as a debt due by the firm. In 1843, the partnership of Kibbe and Perry haviDg been dissolved, judgment was confessed by Kibbe, before the district court in Avoy-elles, for the amount of the draft and charges, with a stay of execution, for several months; the judgment bearing ten per cent interest, from the 28th of October, 1839, the supposed date of the draft. The suit in which the judgment was confessed, was brought on the draft, which, it was alleged, had been mislaid, and the draft does not appear to have been produced, nor was it so required by the defendant.

The present suit was'instituted against Perry, in the parish of Vermillion, in 1849, on the account of the articles sold, without any notice of the draft received by the plaintiffs or- the judgment obtained against the other partner, Kibbe. The defendant pleaded the general issue, and the prescription of five and ten years. The judgment of the court below is, that the demand of the plaintiffs be rejected at their costs. The plaintiffs have appealed. The form of this judgment is new to us; and as every new formula requires a new interpretation, we prefer that the old forms of judgment should be observed, as they either close the case forever, or leave it open to another trial, without any room for doubt.

Kibbe and Perry having been commercial partners, it is obvious that, as their obligation to the plaintiffs was in solido, the judgment against one partner, is no obstacle to a judgment against the other. It is. not proved that there was any extinguishment of the original account, between the plaintiffs and Kibbe and Perry, by novation. Novation is not to be presumed. The receipt of a note or bill, for the amount of a dobt, is not necessarily a novation, or extinguishment •of the debt for which it is given. The only remaining question is, whether the outstanding draft is an impediment to the plaintiffs’ recovery.

It is not proved, that the name of the firm was upon the draft; the proof is, that it was accepted by Kibbe, verbally, as a debt due by the firm ; and besides the obligation of the defendant on the draft, if any existed, has been extinguished by the prescription of five years, which the defendant himself has pleaded.

This state of facts offers no impediment to the plaintiffs’ recovery on the original debt, nor does it require any bond of indemnity, for the benefit of the defendant against the re-appearance of the draft.

It is therefore decreed, that the judgment of the district court bo reversed, and that the plaintiffs recover from the defendant, the sum of $1940 90, nineteen hundred and forty dollars and ninety cents, with interest from the 28th October, 1839, and costs in both courts.