Bienvenu v. Segura

Morphy, J. delivered the opinion of the court. This action is brought on a promissory note of $2000, drawn by the defendant to the order of one Ferdinand Prados, and by the latter endorsed over to the plaintiff. The answer avers, that not bei ig able, to read or write, the defendant cannot say, whether the note sued on is signed with his mark or not, and requires strict proof; that if defendant ever signed any such note, it was given through'error and without any valid consider ration. He further avers, that being ignorant of his rights, he has paid a sum of $1424 18 on the said note, which is marked in figures on the back of the same, and for which he prays credit. In an amended answer the defendant avers, that he has paid the full amount of the note sued on, and prays to be dismissed from the suit. The plaintiff had a judgment for $575 82, the balance due on the note ; and the defendant appealed. On the trial, the credits in figures on the back of the note-were admitted ; the defendant then produced a receipt of Ferdinand Prados, the payee, to prove that he had paid the balance 1 4 of the note; it is dated the 15th of Janvier, 1840. This . . .. , ceipt we cannot but view as a collusive attempt between the defendant and the payee, his son-in-law, to defeat the plaintiff’s claim. It was no doubt considered in that light by the judge below; although it purports to have been given long before, [348] this suit was instituted, the defendant, whose answer betrays a ¿egjre to empl0y every possible means of defence in p0werj says not a word of this receipt. It is only in his amended answer, filed two months after, that he pleads full payment. Two disinterested and reputable witnesses testify however, that after the note had become the property of the plaintiff, she had it presented for payment to the defendant by her son; this was some time in August, 1840. The defendant, on that occasion, acknowledged he owed the balance due, and never pretended, until sued, that he had paid more than $1424 18 on account; nor did he say, that it was given without consideration. He expressed a desire, not to pay more on it, adding, that it would be an injustice to his other children : notwithstanding the ignorance of the defendant, of which so much care has been taken to inform us, we believe, that had he really paid the balance yet due on this note, he would have required its production and delivery. The appellee has prayed for damages for the frivolous appeal. We think her entitled to them; but as the delay obtained by the appeal is inconsiderable, we will allow only five per cent, on the amount due. It is therefore ordered, that the judgment of the court below be affirmed with costs and five per cent, damages,