1 Rob. 335 | La. | 1842
The defendant is sued on an open account for goods sold and delivered, and on sundry notes of hand. The answer pleads the general issue, admits the signatures to the notes sued on, and opposes the plea of prescription as to a note of #417 59, bearing date the 25th of February, 1834, payable one year after date. There was a judgment below in favor of plaintiff only for #397 78, from which he prosecutes this appeal.
On the trial, a bill of exceptions was taken to the opinion of the judge, admitting testimony to prove an endorsement on the note, in pencil mark, in the handwriting and over the signature of the defendant, purporting to be a renunciation of prescription, hearing date the 19th of February, 1840, and several conversations between the witness and the defendant, in which.the latter disclaimed any intention of availing himself of the plea of'prescription. The testi
This construction appears sound and reasonable. The absolute renunciation of the right of pleading prescription at the time of entering into a contract, was the stipulation.intended to be prohibited as contrary to the policy of the law of prescription. But where prescription has been for some time progressing, we can see no good reason why a party should not he permitted',' in order to obtain some indulgence from his creditor, to waive the time which may have run, since under article 3486 he can do the same thing by expressly acknowledging the debt; in fact, such a waiver implies the acknowledgment of the debt, and must interrupt prescription.
This sum of $417 59 being added to the amount which is proved to be due to the plaintiff, entitles him to $852 74.
It is therefore ordered, that the judgment of the district court be reversed ; and that the plaintiff do recover of the defendant the sum of eight hundred and fifty-two dollars and seventy-four cents, with legal interest from the day of judicial demand, and costs in both courts.