10 La. Ann. 67 | La. | 1855
In 1848, the plaintiff made, in Arkansas, his five promissory notes iu favor of Byrd, payable respectively in February, 1860, 1861,1862,
The pretentions of the plaintiff were sustained by the court below, as to the amount paid for the excessive incumbrances. That amount was first applied to the first note which it extinguished, and then to the four notes held by Cray & Campbell, which were thus only partially extinguished. The claim of setoff for the amount paid for the accommodation endorsement was rejected. From this judgment, the plaintiff alone appealed. In answer to the appeal filed by Montross & Stillwell, they pray that the judgment be .amended, by deducting from all the notes pro rata, the amount paid for the excess of incumbrances.
From the evidence, it appears that the general law, in regard to commercial paper, has been modified by the statute of Arkansas, which enacts that all instruments for the payment of money or property shall be assignable, and the assignee may sue on the same in his own name as assignee, in the same manner as the original payee might or could do ; and further, that this provision shall not change the nature of the defence or prevent the allowance of discounts or offsets either in law or equity, that any defendant may have against the original assignor, previous to the assignment, and that all assignments shall bear date of the true day on which they are made, and all blank assignments be taken to have.been made on such day as shall be most to the advantage of the defendant.
Under this legislation, we think it clear that the plaintiff was entitled to relief to the amount paid for the excess of incumbrances on the property purchased. There was a failure of consideration for the notes pro tantp. It was an infirmity contemporaneous with their execution, and the equitable defence in such case, is clearly reserved by the law of the place where the contract was made, even against subsequent bona fide holders. See Oldham v. Wallace, 4 Arkansas Rep. 561.
"With regard to the claim of setoff for the amount paid on the accommodation endorsements, we think it was properly rejected. That payment was not made until March, 1851. A year before that date, the attachments of the defendants were levied. The fact that the plaintiff had furnished his accommodation endorsement to Byrd, was not, of itself, a ground for the allowance of a setoff, either in law or equity. It was only upon payment of the bills that
Montross & Stillwell dispute the mode in which the reduction has been imputed by the court below, and ask an amendment imputing it pro rata on all the notes.
Waiving the inquiry, whether Montross & Stillwell, not having appealed, can, by virtue of their answer to the appeal of the plaintiff, a’sk an amendment detrimental to their co-appellees, we proceed to decide the point in controversy.
Byrd, as we have seen, had assigned the last four notes of the series to Gray & Campbell, before maturity, but still continues the owner of the first note, although it is now held by the Sheriff under the subsequent attachment of Montross & Stillwell. As the latter have only the rights of an attaching- creditor in respect to the fli-st note, they cannot pretend, as against the assignees of the four notes, greater rights than Byrd, the assignor, had; and it is clear that as between Byrd and Gray & Campbell, the offset would be properly imputed to the note which he had not assigned, rather than to the notes which he had assigned. As he was unquestionably bound in equity to permit the imputation to be so made, the attaching creditors, taking his right, are in no better position.
As to Neiolon, it is true he asked for a pro rata imputation, but he also stated the facts, and asked for all such relief as equity would sanction, and to change the judgment against him on account of this suggestion in his petition, would be clearly unequitable.
Judgment affirmed, with costs.