Estate of Sedonia William v. Delores Benoit

• Court: Louisiana Court of Appeal
• Decided: April 13, 2011
• Docket: CA-0011-0200
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 11-200

ESTATE OF SEDONIA WILLIAM

VERSUS

DELORES BENOIT

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APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 114954 HONORABLE JOHN E. CONERY, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Marc T. Amy, Billy Howard Ezell, and Phyllis M. Keaty, Judges.

AFFIRMED.

Owen J. Trahant, Jr. P. O. Box 11804 New Iberia, LA 70560 (337) 367-7727 Counsel for Defendant/Appellee: Delores Benoit Steven J. Diebold Champagne & Brumbaugh P. O. Box 3764 Lafayette, LA 70502-3764 (337) 233-4414 Counsel for Plaintiff/Appellant: Estate of Sedonia William EZELL, JUDGE.

In this matter, the estate of Sedonia William appeals the decision of the trial

court dismissing its suit for dissolution of a sale. For the following reasons, we

hereby affirm the decision of the trial court.

On January 12, 2001, Mrs. William sold immovable property to Delores

Benoit. The property was sold for a total price of $8,500; $1,500 of which was due

immediately as a down-payment. The remaining price was to be paid in twenty-two

monthly payments of $300, with a final, twenty-third payment of $400. Late fees and

attorney fees were also established for delinquent payments. The estate of Mrs.

William filed the present suit to dissolve the sale, alleging that no payments were

made after May 2002. Ms. Benoit filed an exception of prescription, which the trial

court granted, dismissing the estate’s suit.

From that decision, the estate of Mrs. William appeals, asserting two

assignments of error. The estate claims in ruling that a promissory note was

contained within the sales agreement and that the trial court erred in applying the

five-year prescription period for suits on promissory notes, rather than a ten-year

prescriptive period.

There is no assertion in this matter that the sales agreement in question is not

a negotiable instrument. A non-negotiable promissory note is defined as being “an

unconditional promise in writing made by one person to another signed by the maker

engaging to pay on demand, or at a fixed determinable future time, a sum certain in

money.” DeRouin v. Hinphy, 209 So.2d 352, 354 (La.App. 4 Cir.), writ refused, 252

La. 465, 211 So.2d 330 (1968).

“The word ‘promise’ is not sacramental in a promissory note. No particular form is required by law * * *”. Meyer v. Weil, 37 La.Ann. 160. See also Spearing & Co. v. Succession of Zacharie, 26 La.Ann. 496.

1 “No particular words of promise are required in a note, but any form of expression is sufficient from which can be deduced a direct undertaking to pay the sum specified * * *.” 10 C.J.S. Bills and Notes § 84, p. 521.

“The written promise to pay, necessary to constitute a promissory note need not be expressed in any particular form of words. It is enough if, from the language used on the face of the instrument, a written undertaking to pay may be fairly inferred. Any form of expression, though not in direct terms, is sufficient if from it there can be deduced an undertaking to pay the sum specified * * *.” 11 Am.Jur.2d § 139, p. 178.

Id.

The contract in dispute clearly indicates that Mrs. William was entitled to

payment for the property from Ms. Benoit, and that Ms. Benoit directly undertook to

pay the sum specified in the contract. That the amount was due in twenty-three

monthly installments fairly evidences the parties’ intention that the note would have

a maturity date, and the reasonable conclusion is that the maturity date was to be

twenty-three months after the date of execution. There were no conditions set as to

payment being rendered, and the amount was clearly and definitively set forth in the

sales agreement as $7,000, after the $1,500 deposit was deducted for the required

down-payment. Thus, while the sales agreement herein does not stand as a classic

example of a promissory note, the language of the contract makes it one. The trial

court committed no error in so finding.

Having determined that the sales agreement contained a promissory note,

prescription in this case is governed by La.Civ.Code art. 3498, which states: “Actions

on instruments, whether negotiable or not; and on promissory notes whether

negotiable or not, are subject to a liberative prescription of five years. This

prescription commences to run from the day payment is exigible.” As no payments

were made after May 2002, and suit was filed in August of 2009, it is clear that Mrs.

2 William’s suit has prescribed. Again, the trial court committed no error in dismissing

her estate’s suit on those grounds.

For the above reasons, the ruling of the trial court is hereby affirmed. Costs of

this appeal are assessed against the estate of Mrs. William.