Burthe v. Donaldson

15 La. 382

• Court: Supreme Court of Louisiana
• Decided: May 15, 1840
• Status: Published

Opinion

Bullard, J.,

delivered the opinion of the court.

This is an action upon a protested draft, against the drawer and acceptor, and upon a promissory note given as collateral security. Judgment having been rendered against all the parlies, two of them, to wit, Donaldson the drawer of the draft, and Barnes the acceptor, have appealed.

On the part of Donaldson, the drawer, it is urged that the judgment against him is erroneous, inasmuch as the draft drawn by him was not accepted according to its tenor, and that he has never been notified of a demand, and failure to pay, on the part of the acceptor.

Where a plasterer drew a draft on the owner, stating “it was for plastering done on his building,” the acceptance was an admission that the drawer was entitled to a privilege under article 3216, No. 2 of the Louisiana Code,and which passed to. the holder of the draft.

We think the exception well taken. The draft was not at any particular sight, and may, therefore, be considered as at sight. The bearer consented to an acceptance at four months, and thereby, we think, released the drawer.

Barnes, the acceptor, complains that the judgment allows the plaintiff a privilege on a particular house.

The draft, which the defendant, Barnes, accepted, was drawn by a plasterer, and the consideration, expressed on the face of it, was “ for plastering done on your building.” The acceptance of the draft was an admission that the drawer was entitled to a privilege under article 3216, No. 2 of the Louisiana Code, upon a building of the acceptor. That privilege passed to the plaintiff, who was the bearer of the draft. But it is said the evidence does not show that the privilege existed on the house in St. Paul-streef, between Gravier and Common streets. The appellant was notified by the petition, that a privilege was claimed on that particular building, as the one on which the plastering had been done. There is no evidence that the appellant owned any other house. As relates to him, it ought to be indifferent whether there be a privilege on one of bis houses or another; and if that particular building has ceased to be his, the judgment cannot affect the present owner, not a party.

The judgment, so far as relates to the appellant, Donaldson, is therefore avoided and reversed, and ours is in his favor, with costs in both courts; and as it relates to the defendant, Barnes, the judgment is affirmed, with costs.