Small v. Zacharie

| La. | Mar 15, 1843

Simon, J.

The defendants are appellants from a judgment condemning them to pay a part of the plaintiff’s claims, founded on a promissory note of the amount of $989,88, on which they allege that they owe only the sum of $539,88, which, they say is all that in justice they are bound to pay to the plaintiff, to whom they tendered said amount about, or at the maturity of the note sued on. The balance of the note is disputed on divers grounds set up in the defendants’ answer, going to show a want or failure of consideration for the same to the amount of $450.

Judgment was rendered below for the sum undisputed, with interest and the costs of the suit; and the case remained open for the balance of the claim.

The appellants complain, that the judgment was rendered against them ex parte, and without evidence. They contend that as the admissibn contained in their answer was the only foundation of the judgment, that admission must be taken entire and cannot be divided; and that as it was accompanied by the allegation of a tender of the sum due at the maturity of the note, they cannot be made liable in their answer for any thing but the principal, and neither for interest, or costs.

There being no dispute as to the amount admitted to be due by the defendants’ answer, judgment was properly rendered therefor, on the motion of the plaintiff’s counsel. No trial was required for the sum admitted by the defendants. Parsons et al. v. Suares, 9 La. 412.

With regard to the interest, we think it was also properly allowed. Supposing that the admissions on which the judgment is based could not be divided, the plea of tender relied on by the appellants, is so informal, irregular and insufficient, that it cannot be taken as a compliance with the requisites of the law. Code of Practice, arts. 404, 407, 413, 415. Civil Code, arts. 2163, 2164. The manner in which the alleged tender was made is not stated, nor is it shown that the money was ever consigned as required by law ; and the answer does not contain any denial of the amicable demand and refusal to pay set forth in the petition.

We must, however, remark, that under the doctrine recognized by this court, in Diggs et al. v. Parish et al., 18 La. 8, the defendants could not, perhaps, be dispensed from proving their allegation of a real tender. As a matter of defence, it should be established by legal evidence, as well as any other fact tending to show their discharge from the obligation sued on, or that they are not liable to pay the whole, or part of the plaintiff’s demand.

With respect to the costs of the suit, we are of opinion that the judgment appealed from was premature. Those costs, being thrown by law upon the party cast, should be the result of the final decision of the cause ; and non constat that the defendants may not yet plead and prove the real tender of the amount by them admitted to be due in the manner prescribed by law, which, if they succeed in establishing the other branch of their defence, will necessarily throw the costs upon the plaintiff. As a general rule, the costs should not be taxed before a final determination of the suit.

It is therefore ordered and decreed, that the judgment of the City Court be affirmed in all its parts, except with regard to the costs of the suit in the lower court; which are to remain undecided upon until the final decision of the suit; and that the appellee pay the costs of this appeal.