First State Bank & Trust Co. v. J. E. Smoot & Co.

2 La. App. 793, 1925 La. App. LEXIS 270

• Court: Louisiana Court of Appeal
• Decided: March 4, 1925
• Status: Published

Opinions

MOUTON, J.

Plaintiff, in its petition, alleges that J. E. Smoot and Company, on October 27, 1920, drew a draft on the Columbia Box Factory Inc., to its own order and by it endorsed, for the sum of $399.23; and, that it acquired this draft, in good faith before maturity and for a valuable consideration. Reserving its rights against the Columbia Box Factory, acceptor, and the Ten Day Grocery Co., endorser, plaintiff sues defendant company for the amount of the draft, with exchange and legal interest.

The court overruled an exception of no cause of action filed by defendant, but rejected the demand on the merits.

Plaintiff appeals.

Non-payment of the draft is alleged in the petition but there is no allegation of notice of dishonor to the J. E. Smoot and Company, drawer and endorser. Such a notice is required by Section 89, of Act 64, 1904, or else the drawer is discharged. Nor is there any averment in the petition that notice of dishonor was dispensed with or was waived either expressly or by implication. Plaintiff having failed to so allege, the petition discloses no cause of action. 120 La. 711.

It is therefore ordered, adjudged and decreed that the judgment overruling the exception be avoided, and reversed; that the exception of no cause of action be and is hereby maintained, dismissing plaintiff's suit at its costs.