Leverich v. Bossier

Merrick, C. J. 8. Bossier, of the parish of Caddo, on the 20th January, 1850, drew his draft for $3,300, payable to his own order, twelve months after date, on Messrs. Leverich & Oo., of New Orleans. The draft, after being endorsed, was left with them as accommodation paper, or to cover futur'e advances. Edward J. Walsh, who is alleged in the plaintiff’s petition to hate been the sole person interested in the firm of Leverich & Go., through his agent, during his absence, procured William E. Leverich and Samuel J. Peters, as executors of the estate of J. H. Leverich, to discount the draft for his own benefit, before its maturity; the drawer not being in any manner credited with the proceeds or benefited by the transaction. The executors transferred the draft to Mrs. 8. A. Levw'ich, the widow of J. H. Leverich, deceased, and she has instituted the present action. At maturity, the notary charged with making protest, certifies, that he demanded (through his deputy) payment for said draft at the office of Mr. William Lwyster, the surviving partner of the late firm of Levwich & Go., acceptors thereof, and was answered by a clerk, that said William Lwyster was not there, and had left no instructions in relation thereto. The notary further certifies, that he left notices of protest with Mr. William Lwyster personally, for the drawer and first endorser, and, at his request, at the office of WilUaen E. Leverich; he left notices with Lwyster, also, for William E. Leverich and Petm's' executors. The testimony of both William E. Leverich and William Lwyster was taken, and was offered in evidence, the defendants, the widows and heirs of Bossier excepting. The deposition of W. E. Leverich ought to have been excluded. As a gene ral rule, an executor cannot draw or endorse bills of exchange for affairs aris" ing after the death of the testator, so as to bind the estate. His endorsement, herefore, in such case, binds himself personally, notwithstanding he signs as [584] executor. The witness appeared, therefore, directly interested in procuring a recovery on this paper against the prior parties, and his interest is not equally balanced between plaintiff and defendant. The objection to Luyster's testimony, goes more to its effect, than admissibility. It is clear that the drawer of the draft was at least entitled to all the rights of drawers and endorsers of strictly commercial paper. It was, therefore, incumbent on the plaintiff to show that the bill of exchange sued on, was presented at the proper place at the maturity of the draft, and due notice of its dishonor given to the' drawer and endorser. In this we think the plaintiff has failed in her action. She has alleged in her petition, that Walsh alone composed the firm of Leverich & Go., and has proved the same by her witnesses, and, moreover, offered the deposition of Luysteri’ as a disinterested witness. She claimed that Walsh transferred the title to the paper to the executors, which the defendant has endeavored to defeat by an allegation in the answer, that both Imystcr and J. II. Luverieh were members of. the firm of Leverich & Go. In the consideration of the case, therefore, we think we should give the benefit of the plaintiff’s allegation, which is sustained by proof, to the defendant, rather than give the plaintiff the benefit of the defendants’ allegation in -their answer, which the plaintiff has disproved by her testimony. As it is established that Luyster was not the partner of Walsh, who composed the firm of Leverich & Go., a demand upon 'him as surviving partner of the late firm of Leverich & Go., was manifestly insufficient. The authority cited in case of a demand at the place where a note is made payable in a suit against the make'f or acceptor, is not applicable to the present case. The case of Landry v. Stansbury, 10 L. R. 484, if still law, establishes an exception to a general rule. The present case, while within the general fule, is not covered by the authority of the case cited. See 7 Ann. 493 ; 4 Rob. 276 ; 7 R. 13; 4 Ann. 483. It is not pretended that any other demand than that upon Imyster has been made. ¥e will, therefore,- render a final judgment in favor of the defendants. It is ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the demand of the plaintiff and in favor of the defendants. And it is further ordered, that the plaintiff pay the costs of both courts.