Offutt v. Chapman

Howe, J. These suits were consolidated in the court below. The plaintiff has appealed from a judgment dismissing his claims in both (tases. The first of the suits is brought on the following obligation: “ $1600. Received, Clinton, La., July 14,1860, of John Offutt, one thousand six hundred dollars, payable on demand. “ W. W. CHAPMAN & CO. “per L. G. Chapman.” (Indorsed) “ Received of tbe within one hundred dollars. January 10, 1866. “ JOHN OFFUTT.” This is a promissory note. Parsons on Notes, vol. 1, pp. 23 24, and cases cited-. Tbe second suit is brought to reeover the sum of $500 which plaintiff avers tobe due from W. W. Chapman & Co. for “money loaned,” the defendant, McKowen, being sued as a partner in that commercial firm. Citations were served in tlie cases respectively January 12,1867, and May 8,1867, and among other defenses the. prescriptions of three and five years have been pleaded. It appears by a comparison of the dates above given that both claims are prescribed. The note bad been prescribed upward of five months when the alleged payment was made on account, and tbe memorandum indorsed on it by plaintiff. The plaintiff was bound, therefore, as to that note, to establish a renunciation of prescription, and of this there is no legal evidence. Such renunciation can only be established by written evidence. Laws of 1858, No. 208, § 4. It will not be seriously contended tllat tlie plaintiff can make such evidence for himself by Simply writing upon tbe instrument tbe receipt which appears to be indorsed upon it. Nor can tbe parol testimony of plaintiff on the record be permitted to establish a renunciation. The statute of 1858 is positive in requiring, the written proof. The claim for money loaned was prescribed by tbe lapse of three years. C. C. 3503. For the reasons given it is ordered and adjudged that tbe judgment appealed from be affirmed with costs.