Spiro v. Connor

ELLIS, J. The plaintiff declares that he bought from R. J. Maloney, notary, a note of J. M. Connor for $2,000, of date February 21, 1904, at one year, with 8% interest [321] from -date-; that it hore the paraph of said notary, certifying that it was secured by an act of mortgage of same ■date, passed before him; that, on the faith of this official pafaph, he paid said notary $2,000 'for said note; that, in 1908, after receiving interest and extending the note, he ascertained that there was no mortgage securing the payment of said note, and that it was only the promissory note of an insolvent person. On these allegations, to recoup his loss, he sued the maker of the note, Maloney, the notary, and Dr. J. H. Maloney, as surety on the bond of said notary. The maker of the note made no defense, and was condemned by default. The notary plead the general issue, and, as to him, the case is pending. Dr. Maloney denied that he was the surety of said notary, when plaintiff bought the note declared upon, from said notary. He alleged that plaintiff, in purchasing said note, was dealing with said notary, as a broker, and not as a notary public. He also interposed, against the plaintiff’s right of action, the prescription of one year. On these issues the case was heard as to said defendant, sued as surety, and the District Judge nonsuited the plaintiff, and he has appealed. Appellee has answered the appeal, praying that the judgment be amended, so as to make it absolute and final. On these pleas our findings are as follows: First. The plea of prescription may be dismissed with the remark that the obligation of appellee, as surety on the notary’s bond, was contractual. , Second. The defense that plaintiff bought the note from Maloney, as a note broker, is overthrown by the proof that he purchased on the faith of said Maloney’s official paraph, certifying that said note was secured by a mortgage. The falsity of this paraph is plaintiff’s [322] cause of action against the • appellee, as surety on said notary’s bond. Therefore, it is of no consequence that Maloney, the notary, may also have been a note broker. Nolan vs. Labatut, 117 La. 431; Spitzfaden case, No. 4892 of this Court. Third.. The defense of discussion was not pleaded, but was advanecd in argument. It was urged that the record shows that, on February 21, 1904, Connor, the maker of the $2,000 note held by plaintiff, executed an act of mortgage for $2,600 before Maloney, notary, and that there was no other act executed by him on that day; and, as the greater includes the less, that $2,600 mortgage may be the security for plaintiff’s $2,000 note. The argument is that plaintiff should be compelled to discuss that mortgage, and that, until he does this, his suit to hold the appellee as Maloney’s official surety, is not only premature but must fail on the merits; because, if it appears that his note of $2000 is secured by said mortgage; he has suffered no damage, even if Connor, the maker of the note, be insolvent. The act of mortgage of date February 21, 1904, for $2,600, is in evidence. Comparison of it with plaintiff’s note of $2,600 shows that both bear Connor’s signature and have the same apparent date, and both, apparently, were executed before the same notary; but beyond this there is no identity. The one bears interest at 7%-, the other at 8%; the one is payable at the Teutonia Bank & Trust Co.; the other at the Hibernia Bank & Trust Co.; the one is for $2,000; the other $2,600. In the face of such facts, it would be vain and idle to require of plaintiff discussion of that mortgage, as a condition precedent to his right of action as propounded in his petition.