15 La. 314 | La. | 1840
delivered the opinion of the court.
The defendant is appellant from a judgment on his promissory note.
It appears he made two notes of sixteen hundred dollars each, payable on the same day and month of the years 1837 and 1838, which were lodged in the bank for collection. Schmidt, who had assumed the payment of these notes, called at the maturity of the first, and paid .it. . Throng'll mistake the clerk handed him the note payable in 1838, after having stamped it as paid. At the closing of the bank on that day, the other note being still there, was taken up as a check, the defendant having sufficient funds in bank to meet it. Having drawn a check for the balance which he supposed to be in bank at his credit, and being ignorant that this balance had been reduced by taking up this note as a check, information was sent to him that he had overdrawn. The defendant came to the bank, and discovering the cause of the reduction of his balance, he insisted on the correction of the mistake, and had the rightful balance reinstated. In the mean time, Schmidt having discovered that he had received the second, instead of the first note, claimed and rece'ved first note on returning the second, at the maturity of which, Schmidt having failed, the defendant refused to Pay °P the ground that Schmidt having the faculty of PayiL18'> ai1^ having actually paid this note by anticipation, the bank had no right, without the defendant’s consent, to annul this payment and to revive his liability. He further contended, that the payment of the note being secured by mortgage in the notarial act by which Schmidt had assumed
It appears to us the District Court did not err, as it provided that the plaintiff, before taking out execution, should furnish to the defendant a bond with good security in a sum •exceeding the amount of the note, to indemnify him against any loss in prosecuting his claim against Schmidt’s estate, occasioned by the erroneous stamping of the note sued on.
The failure of Schmidt absolutely deprived the defendant from any resort to an order of seizure, and sale; therefore, the stamp erroneously put on the note did not place him in duriori casu. It is evident that the payment made by Schmidt of the second, instead of the first note, was made in error, and therefore did not extinguish the obligation of which this note is the evidence, nor the mortgage, which is its accessory. This error was properly proved by witnesses.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.
