9 La. Ann. 494 | La. | 1854
The plaintiff’s action is- founded on a promissory note and draft, alleged to have been lost in the year 1849; he also claims the sum of $400, as one-half of the price of a tract of land sold by William Lazarus, for the joint benefit of himself and Burroughes, alleging that the latter received the whole amount thereof.
The note' is described as drawn for the sum of $600, and dated in the year 1846, and the draft for the sum of $>160; both endorsed by William Lazarus.
In the advertisement of the loss,, published in January, 1853, the amount of the note is not specified; it is merely described as drawn in favor of the plaintiff, dated sometime in the year 1846, and bearing' eight per cent, interest. The draft is described as drawn to the plaintiff’s order, without mentioning the drawer’s name.. If is evident that the description of the lost instruments in the advertisement is, in some respects,, at variance with that contained in the petition. The affidavit of the plaintiff at the foot of his account, verifying its correctness, is the only evidence in the record in relation to the loss of the instruments; declared upon,, and, in our opinion,, is clearly insufficient. Under the provisions of our Code, Article 2258, it is essential for the plaintiff to show, in order to entitle him- to recover, either by direct testimony, or by circumstances supported- by his oath, the fact of the probable loss of the instruments sued upon. It is also essential for him- to show that the notice required'by Article 2259, has been seasonably given.. We are not '-prepared to say" that such notice has been given, a period of nearly four years having elapsed from the time of the alleged loss to the date of its advertisement. 2 Ann. 754, ibid 829.
The admissions or confessions of a party have repeatedly been considered by this court as evidence of the weakest character;, particularly when made to the witness alone, unsupported by corroborating circumstances. The acknowledgment made by Burroughes to some of the witnesses in 1850, is entirely too loose and indefinite as to the nature and extent of his indebtedness, to autho-rise us to arrive at a different conclusion from that of our learned brother of the District Court.
In relation to the plaintiff’s claim of $400, alleged to be a part of the price of the sale of a tract of land, there is no evidence.
It is however urged by the appellant, that the Judge á quo erred in giving a final judgment against him, as his claim was not prescribed. We think the judgment should have been one of nonsuit. There is no allegation, nor is it in proof that the note sued upon was made payable to bearer or order, so as to be prescribed under Article 3505 of the Civil Code. 3 Ann. 220. 4 Ann. 171, 126. 5 A. 147.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that there be -judgment against the plaintiff as in case of nonsuit, the appellee to pay the costs of appeal, and those of the District Court to be borne by the appellant.
