Smith v. Brown

| La. | Apr 15, 1857

Lea, J.

The defendant is- appellant from a judgment rendered against him as tutor of his minor child, William R. Brown, upon a claim for professional services rendered by the plaintiff as an attorney-at-law in two suits in which the interests of the minor were involved. The basis of the suit is an open account in which the claim for services is set forth. The defence rests upon the pleas of novation and prescription.

We consider the plea of prescription untenable, as it is shown that the correctness of the demand has been acknowledged by the tutor -within the last two years, and the only proof of the alleged novation of the debt consists in the fact that the tutor gave his individual notes for the amount.

This would not amount in law to a novation. Novation will not bo presumed. “It can only be established by express declaration to that effect by the creditor, or by acts which are tantamount to such a declaration.” C. C. 2188. In the case at bar, had the note of a third party been given to the plaintiff we should not, under the circumstances of the case, have been justified in drawing the conclusion that a novation was intended.

We have considered this case as it has been presented in the pleadings and arguments of counsel, and do_ not wish to be considered as expressing any opinion with reference to the regularity of the proceedings in other respects.

Judgment affirmed.