Hestres v. Petrovic

Martin, J. Trezzini, one of the defendants, is appellant from a judgment against him as endorser of Petrovic and Hardy. His counsel has assigned for error apparent on the face of the record, that payment was not demanded of Hardy, one of the makers of the note, and that no notice of the protest was ever served on the appellant. The two makers being bound in solido, the endorser is liable on the demand of and refusal by either of them. The notice of protest was served on Sampeyrac, as agent of the appellant, who had left the country for Italy. Lamié deposes that the appellant told him that he was going to Italy,- and did not intend to return ; that he had appointed Sampeyrac as his agent, that he was his charge des affaires — that he was his general agent during his absence. The notary deposed that the cashier of the bank in handing him the note to be protested, instructed him to give notice to Sam-peyrac, the agent of Trezzini; that, accordingly, he called on Sampeyrac, and asked him whether he was Trezzini’s agent, and was answered affirmatively ; and that on giving the notice, he was instructed if he had any other notices to serve on Trezzini, to hand them to his (Sampeyrac’s) clerk. Sampeyrac being examined deposed, that during Trezzini’s absence he acted as his agent, and was authorized to collect notes, a list of which was given him; and on his cross examination he stated that at the foot of the procuration Trezzini gave him, he wrote that he owed nothing, and referred to a bundle of receipts. The procuration was to collect and not to pay; he was authorized to furnish the necessary supplies to Trez-zini’s plantation. Before Trezzini left this country for Italy, he gave public notice'of his intended departure for that country. It does not appear to us that the district court erred, in considering the notice as duly served. It is lastly urged, that the appellant endorsed the note as administra- ' tor of the estate of Rachal, and consequently incurred no personal responsibility. As a general principle an administrator cannot create any liability on the estate by his contracts, although he may discharge any debt due to the estate, on receiving payment. If therefore he discount a note which he has received in payment on the sale of any property of the estate, his endorsee has a claim against him personally, and cannot be compelled to wait for payment in the ordinary course of the administration. We do not wish to be un 121 derstood as intimating an opinion, whether or not, if a creditor of the estate were to receive from an administrator a note given for the purchase of any property of the estate, the administrator could resist the creditor’s claim on him personally, if the note were protested. Nothing shows in the present case, that the transfer of the note had any relation to the affairs of the estate. 5 Martin, N. S., 530. 8 Id., 451. 12 La., 188. Judgment affirmed.