Hunter v. Spurlock

Porter, J. delivered the opinion of the court. This action is brought on a promissory note executed by the defendant, and payable to one Tippett, who endorsed it to the plaintiff. It is for the delivery of a certain quantity of cotton, and was given in part payment of a tract of land which the maker bought from the payee. As it contains an obligation for property, and not for money, it is not governed by the rules applicable to paper negotiable by the commercial law. The defendant has therefore set up the equitable defences which he-might have had against the payee; and in an original and amended answer he has pleaded : 1. That the note was given in consideration of a tract of land, which he bought of S. Tippett; that since the sale, one Wall has instituted a suit against the respondent, which is still pending, and which has for its object to evict him of a considerable portion of the land. Previous, however, to going into the merits, two exceptions filed to the petition and overruled in the inferior court must be disposed of. They are as follow: 1. That the defendant had not been put in mora by a demand of the cotton; and 2, That the action should have been in damages. " The contract stipulates that the cotton shall be delivered at some convenient gin. It is not shown that any was fixed on by the parties. The place of payment was not determined, but determinable by the contract. And as none was after-wards agreed on, there was none specified; and the case is thus presented, in which demand must be made at the dwelling of the debtor. See Louisiana Code, article 2153. It has been objected that the protest of the notary shows that no personal demand was made on the obligor. We think it was sufficient to leave the demand in writing at the domicil of the debtor; and we do not see any sound reason for distinguishing between this case and a demand on a bill of exchange or promissory note for the payment of money. The article 1905 of the code, which treats of the manner a debtor is to be put in mora, does not require the notice to be personal. [100] It was objected that demand should have been made on the very day the note became due, and could not be made after. We did not understand from the argument the precise object of such an objection. We do not suppose counsel intended to urge that the obligation was discharged because payment was not demanded the day it became due. If he did, it is almost unnecessary for us to say that such a position is as unsupported by law as it' is repugnant to every idea of equity and justice. That in relation to the form of the petition; that it should have been an action for .damages, and not such a suit as is brought, is pretty much of the -same character as that just disposed of The petition states the contract; its breach, and that by reason thereof the petitioner has sustained damages to the 'amount of seven hundred dollars. Judgment is prayed for that sum; that is for seven hundred dollars damages. We should suppose this ought to .satisfy any desire the defendant may have to be sued for damages. Another matter was offered in argument which must be noticed before we can reach the merits. A demand in reconvention in the form of an exception, (to use the language of , „ _ . , _1 , ’ '. , the Code ox Practice) was pleaded m the answei to the merits. The appellant complains that his demand was never sei’ve^ 011 the plaintiffs, and that they put in no answer to it. If it were necessary to make such service, and to have an answer filed, it 'was the defendant’s duty to see that the hÉation,, ar*d copy of his claim in reconvention, were put in the hands of the proper officer. And when the plaintiff was before the .court, it was his duty to take a judgment of default, the *aw recluh'ecl R; and he could not now delay the plaintiff by an averment of negligence on his part. But neither the one nor the other was necessary. The plaintiff, who *s in courfis hound to take notice of the demand in reconvention, and the law raises an issue on. that demand without an answer in writing. 1 Louisiana Reports, 260. The evidence shows that a suit is pending and undecided, in which a third person sets up title tó a portion of the land which the defendant purchased. In such a case the law [101] provides, that the seller may give security, or compel the buyer to deposit the price. This the judge by his judgment directed; and in so doing we are of opinion he committed no error. Louisiana Code, 2535-6. The appellee has prayed that the judgment be amended as to the amount of damages: but we think they were correctly estimated. Ten per centum damages are prayed for the frivolous appeal. But we do not think this a case in which they should be granted. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.