Allain v. Lazarus

Bullard, J., delivered the opinion of the court. This is an action upon sundry promissory notes, and upon an account for moneys advanced and goods sold, as well as for commission as factors. It is alleged that the amount due is secured by special mortgage. There was a verdict and judgment for the plaintiffs, for a large part of their demand, and the defendant appealed. The appellant has relied upon two points. 1st. That the notes were improperly admitted in evidence without proof of a previous demand of payment, at the place at which they were made payable. 2d. That the testimony of a single witness, not corroborated by other circumstances, was insufficient to prove the [331] demand on the account, which greatly exceeded five hun‘-dred dollars. I. The five promissory notes sued on, secured by mortgage, were made payable at the counting-house of the present plaintiffs, who were the original payees. The general rule is well settled in this court, that, when a promissory note is made payable at a particular place, a recovery cannot be had upon it without proof of a demand at the place of payment. 3 Martin, N. S., 423. 10 Louisiana Reports, 552. But we are of opinion that the case now before us forms an exception to that fule. The commercial law, as understood by some of the courts of the United Stales, and perhaps in:.England, does not render it necessary for the payee to prove a demand of the acceptor, in order to recover of him, but it is necessary to show his default in order to recover of the endorser or the drawer. Chitly on Bills, 394. In the case before the court the maker of the note contracted thé obligation to repair to the counting-house of the payees, and to make payment. They must be presumed always ready and willing to receive ; and when it is shown that the payees are still in possession of the note, the burden ought to devolve on the obligor to show a readiness and offer to pay on funds placed in the hands of the payee, for that purpose, if he wishes to exonerate himself. Wallace vs. McConnell, 13 Peters’ Reports, 136. II. Upon the second point, it appears that the case was left to the jury. A single witness deposed that he had presented the account to the defendant, except the interest since added ; the defendant acknowledged the correctness of the account and asked time for payment. The account current shows, on the debit side, some goods sold, drafts accepted and paid, and notes taken up, together with commissions; and on the credit side, the proceeds of various shipments of cotton, &c., in the usual manner of accounts of a commission merchant. The balance of that account, for which the verdict was rendered, greatly exceeds the sum of five hundred dollars; and, consequently, a single witness, without [332] corroborating circumstances, would be insufficient. It is contended that the mortgage, which was given in evidence, constitutes such corroborating circumstances. The mortgage purports to secure, not only the payment of the five promissory notes already mentioned, but “ all other promissory notes, drafts, bills of exchange, and all other engagements and liabilities and responsibilities of the said firm of Allain & Tremoulet, .on account of said Lazarus.” This contract certainly contemplates the same course of dealings between the parties, which is detailed in the account current, and thereby renders probable what the witness has testified to or corroborating his statement. The jury may well have considered it sufficient to authorize their verdict, and we do not think ourselves called on to disturb it. It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.