Thiel v. Conrad

Howe, J. The plaintiff enjoined the execution of a writ of seizure and sale issued in executory proceedings for the collection of certain promissory notes secured by mortgage and vendor’s privilege. His petition alleges two grounds for the injunction. First. — That at the maturity of the notes he tendered payment, and that therefore the interest demanded from maturity could not be lawfully claimed. ’ Second. — That the payee of the notes, defendant in injunction, was engaged in the service of the “so-called Confederate States,” as a member of Congress.; that payment of the notes to him at their maturity and duripg the war was forbidden by law and general military orders, and that therefore the interest demanded after maturity could not be lawfully claimed. The answer was a general denial, with prayer for damages against both plaintiff and his surety. There was judgment in favor of defendant, dissolving the injunction, with damages against the plaintiff alone, and the plaintiff alone has appealed. As to’ the first ground of injunction the court a qua did not err. There was no sufficient evidence of a tender to suspend the accruing of •interest. Two of the notes fell due May 1, 1862, and were by their terms payable at the Union Bank. If we give the fullest effect to the testimony on behalf of plaintiff we find that when these two notes fell due he went with one witness and offered to pay the notes with a check of another person on the Citizens’ Bank, but was told that the notes were not there, and the note teller declined to take the check. There was no tender in lawful money, nor was there any consignment of the amount due: C. C. 2163, 2164; C. P. 404 to 418; 6 La. 19; 4 R. 146; 2 An. 441, 496; 14 An. 327. As to the other two notes, falling due in 1863, there was no attempt to show that any tender was made. Upon the second ground.of injunction the court did not err. There was no evidence adduced' to establish the allegations in .regard to the defendant, and we. are not aware of any rule of law which authorizes ua to take judicial notice of the actions of private individuals. It is [215] therefore unnecessary to consider what effect the proof of this averment would have. It is urged by plaintiff that the notes were payable at the Union Bank; that no demand was made there until long after maturity, and that for this reason the interest of eight per cent, stipulated after maturity cannot be recovered. If we admit that this point can be raised under the pleadings in this case, we reply that in the first place there is evidence to show that the agent of defendant presented the notes at the Union Bank-for payment as they fell duo; and in the second place^ if the testimony of the agent be considered as not establishing this fact, the theory of the plaintiff is incorrect inlaw. We consider it as well settled in this State since the case of Ripka v. Pope, 5 An. p. 61, that where a promissory note is made papable at a particular place, as a bank, in an action against the maker it is not necessary to allege or prove that a demand of payment was made at that place to enable the plaintiff to recover; and that to found a defense upon a want of such demand the defendant (or in this case the plaintiff in injunction) must show some resulting injury. If the maker show that ho had funds at the appointed place at the appointed time, he might bo exonerated from interest thereafter. If he show that ho has sustained actual loss in consequence of nou-presentment, as if the note be payable at a bank, and ho deposit funds there to meet it, and they are lost by the failure of the bank, such loss might be pleaded in defense. But in this case there is no evidence of this sort. Story on Promissory Notes 3228; Parsons on Bills, vol. 1, p. 309 and notes; McCollop v. Flaket, 12 An. 551; Catalonge v. Alva, 13 An. 99; Stokes v. Forman, 12 An. 671. Upon the trial in the court below the plaintiff offered the record-of the executory proceedings to show that the notes and act of mortgáge were not stamped and that two of the notes had been restricted by a special endorsement, and that the order of seizure and sale was therefore irregular, and the defendant objected. The court admitted the record in evidence with, the reservation “that if in an examination of the pleadings said record was not relevant to the issues presented it would not be allowed to weigh with the court in making up its judgment,” and the defendant excepted. The court in its judgment attached no weight to the evidence, and we think properly, inasmuch as the plaintiff in his petition for an injunction made no such averments as he thus sought to establish. The defendant has asked-for an amendment of the judgment so as to condemn the surety on the injunction bond- in solido with the plaintiff, but the surety is not before us. For the reasons given it is ordered and adjudged that the judgment appealed from be affirmed with -costs. Rehearing refused.