Martin v. M'Masters

Martin, J., delivered the opinion of the court. The plaintiff alleges, that the defendant transferred to him anote of one Francis Routh, over due for one thousand dollars, and afterwards prevailed on him to trust him, the defendant, with the note, and while it was in his possession he wrote the words “ without recourse,” at the end of the trans . fer, without the authority or consent of him, the plaintiff. The answer avers that the plaintiff, from his own showing, has no cause of action, and in case this exception be overruled by the court, the answer states certain facts as matters of defence. The court gave judgment against the defendant, being evidently of opinion that the plaintiff had shown a cause of action which was not impaired by the facts pleaded in the answer as matters of defence. It appears to us that the court erred. The defendant’s exception was one of those which are called peremptory of the suit, but not of the action. If it prevail, it did not impair the action, id est, the right of bringing another suit. Code of Practice, article I. But it destroyed or abated the suit, id est, the means to which the plaintiff had resorted to avail himself of his action, leaving him at liberty to pursue his remedy in another suit. The defendant, therefore, had an incontesti-ble right to have his exception considered, independently of any other matter of defence. The Code of Practice, article 336, expressly requires (he defendant to plead in his answer “ all the dilatory or peremptory exceptions on which he in tends to rely,” except as relates to declinatory exceptions. This is done under an implied protestando that they are not to be used if the'exceptions which are peremptory of the guit prevail. [423] „In this case, the protestando is express, “ if the court should decide that said plaintiff has a cause of action,” This leads us to an examination of the first exception : .. The transferee ^rsed'búurans-ferred by aspe-oial assignment of the payee, pacif i°t? can-no5 maintain.an the transferor, Ü on the the time of the Where the note obtained’ possessions a"'¡ , tortiously added the words “ without rewritten transfer^ th^fe'gaüs of the parties, bouncUo notice it. It is, that the petition shows no cause of action. The plaintiff sues on a note not endorsed, but transferred, to him by the defendant. The petition does not deny that the amount of the note was due to the defendant at the time of ' the transfer. The transferee has no recourse on the trans-feror, when the debt exists at the time of the transfer. Louisiana Code, 2616. The solvency of the debtor at the time/of the transfer, nor since, is not warranted, unless it be so expressly agreed. Idem., 2617. In the present case, the solvency of the debtor is not denied in the petition. It is, therefore, clear that the plaintiff had not, under his contract of transfer, any recourse against the defendant. The petition shows no ground of action ex contractu; one is attempted to be shown ex delicto. It is; that the defendant, having been entrusted with the note, tortiously added the words “ without recourse,” to the transfer on the back of the note. We have said that the transfer was made to the plaintiff without any recourse on the defendant, resulting from the agreement of the parties, or the law ; so no injury was done to the plaintiff by the addition of the words “ without recourse” * , to the transfer written on the back of the note. The District Court was called upon to test the legal rights of the plaintiff, but not the morality or propriety of the defendant’s conduct, The conclusion we have come to, renders it unnecessary to examine the matters pleaded in the defence on the merits. ■ It is, therefore, ordered, adjudged and decreed, that there be judgment for the¿defendant as in case of non-suit ; the plaintiff and appellee paying costs in both courts.