New Orleans & Carrollton Railroad v. Chapman

8 La. Ann. 97 | La. | 1853

Dunbae, J.

The defendant is appellant from a judgment rendered against him on two promissory notes, executed by himself, to his own order, and delivered to the plaintiffs. Various grounds of defence are set up in his answer, and two amended answers. In the original answer he admits the execution of the notes, and that he is bound thereon—that he gave them to take up a debt due by his father to the plaintiffs, his father being insolvent; but that the plaintiffs agreed to give him a reasonable time for their payment, and that if this is accorded, he is still willing to pay. In his amended answer he avers, that the debts of his father, for which he executed the two notes sued on, consisted of two drafts and a note, all drawn, by James Chapman, the father—that he has just discovered that his said father was not liable on the drafts, in consequence of the laches of the plaintiffs, and that he has reason to believe that one of the drafts ought to have been credited on the note—that, therefore, lio has erroneously given his obligations for a much larger amount than his father really owed, and that he is entitled to credit therefor, and that, m fact, making allowance for these errors, and crediting him with the amount of sundry collaterals placed in the hands of the attorney for the plaintiffs, he is entitled to a judgment in his favor for the excess,

In his second amended answer, defendant states that he was induced to give his notes, principally on the ground that the sureties, or accommodation endorsers of his father on the original drafts and note, were, as he supposed, liable for the same, and that, wishing to save them from loss, his father being insolvent, he took up the debt—that he has just ascertained that the said sureties were not liable at the time, having been discharged by the laches of the plaintiffs, and, on a portion of the debt, by prescription—that he, therefore, gave his own notes in error, and prays judgment accordingly.

The evidence establishes that James Ohapman originally owed the plaintiffs the sum of thirty-six. hundred dollars, for which they held his note, endorsed by J. Nettles—that at its maturity he executed a new note for $3,200, giving a draft at ten months upon his factors, in Ne-v Orleans, for the curtailment and interest, amounting to $674 45. This draft was endorsed by J. Nettles. When the note for $3,200 matured, a new one was given for $2,880, and a draft, in like manner, at ten months, given for curtailment and interest, amounting to $589 67, also endorsed by Nettles. Both drafts were protested for non-payment, as well also the note for $2,880. The latter matured on the 11th of February, 1844, and the drafts respectively on the 11th of December, 1842 and 1843. It is conceded that these thr’ee obligations formed the basis of the notes sued on, as well as one other note, which is not included in the present suit. W. D. Winter, a witness offered by defendant, states that the original claims were placed in his hands for settlement—and that, on receiving them, he addressed the defendant in x-eferenee to them—that defendant stated he was under no legal obligation to pay them, but that ho had settled many of his father’s debts since he became the purchaser of his property, and was anxious and desirous to settle them all, and would do so if the creditors would give him time. Witness also states, that an additional motive for settling was, that defendant did not wish his father’s endorser's sued, who were then very much involved. That the note and drafts were all exhibited to defendant, and no representation made as to the liability of the parties thex-eto, other than that which really existed. The claims seem to have been placed in witness’ hands for collection about the 21st June, 1840, and immediately thereafter the defendant promised to settle. The settlement was not, however, finally consummated till the 5th of February, 1848.

In the original answer of defendant, filed nearly six yeai'S after his first promise to pay, he acknowledges the validity of his obligations and simply asks for time.

We are satisfied, from the testimony, that James Ohapman, the fathei’, was indebted to the plaintiffs to the amount for which his son, the defendant, gave the promissory notes now sued on. To make a conti'act of this nature, a promise to pay the debt of another, valid, it is only requisite to show the pre-existence of the debt which one has promised to pay to him who is the creditor'. This is the pact constituía pecunias and reqxxii'es no further consideration or foundation than the original debt. Pothier, Tx'aité dos Obligations, 1st vol., p. 367, Du Pact Constituios Pecunias.

This view of the case renders it unnecessary to notice other questions argued .at much length in the brief of defendant’s counsel.

lt is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both Courts.