Janney v. Ober

28 La. Ann. 281

• Court: Supreme Court of Louisiana
• Decided: March 15, 1876
• Docket: No. 4356
• Status: Published

Opinions

Howell, J.

This is an action for the balance of two notes which it is alleged the defendant assumed to pay as a part of the price of the Live Oak plantation in the parish of Concordia, purchased by him on the twenty-second of May, 1867, from James B. and John Q. Packard. The answer contains the general denial, a special denial that defendant over purchased said plantation, or assumed to pay said notos, and the aver-ments that John Janney, the husband of plaintiff, and the agent of defendant in the transactions, denied having signed the said act, which defendant believed, and as the act had been prepared in error, and was, to the knowledge of said Janney, intended as collateral security for moneys advanced by Ober, Atwater & Co. to said Packard, and tho alleged assumption was erroneously inserted, the defendant, having settled the affairs of said firm with said Packards, did, on the sixth of May, 1869, by act before Adolphe Mazereau, renounce and give a quit-claim conveyance of said plantation to said Packards, which was duly recorded in Concordia on the seventeenth of June, 1869, prior to tho seizure and salo of said plantation at the instance of plaintiff, and that, Janney being cognizant of all the facts, neither he nor his wife ever pretended to hold him (defendant) responsible on said assumption, and this suit was the first notice to him of such effort.

After hearing evidence, the case was continued on account of the absence of defendant’s witnesses to a day to be fixed. Two days prior to resumption of trial defendant filed an amended answer alleging that if ¡said act of. sale was signed by authority from defendant, it was with the ■condition and notice to all parties that there was error in said act which ■would be corrected between the contracting parties, and one of the principal errors was the alleged assumption sued on, and defendant never intended to bind himself to pay the debt sued on, all of which was ■known to plaintiff and her husband.

After the evidence was closed and before argument, plaintiffs’ counsel discovered for the first time that such answer had been filed, and moved to strike it out, on the grounds that it came too late and changed the issue made in the original answer. The court refused to strike out, and *the plaintiffs excepted.

As no evidence appears to have been offered with direct reference to or in connection with this amended answer, so as to notify plaintiffs’ counsel of its filing, we see little importance in passing on this bill of exceptions.

Defendant offered to prove by parol, first, that the act of sale from the 'Packards to Ober was not intended for a sale, but only to secure a debt; second, that he had not agreed to assume payment of the notes sued on, ;and, third, certain conversations which took place between Ober and Packard, to which plaintiff objected on the grounds—

First — Defendant can not be permitted to contradict by parol testimony the contents of a notarial act.

.Second — Defendant can not be permitted to prove that the motive of •the contract was to secure a debt where the contract itself proves it to b.c a sale. •

Third — Defendant’s authority to his agent to accept the act of sale ratifies it as such, and has the same effect as if defendant himself had accepted it unconditionally, and he can not be permitted to go behind it •and contradict it.

Fourth — -Plaintiff was not present at the conversations between the defendant and Packard, and they are not admissible as evidence against her.

¥e think the objections are well made; but the evidence as admitted in reference .to the sale only shows the original intention of the parties, ■which was afterward changed, the defendant subsequently concluding to accept the act of transfer containing the assumption of these notes as .a ,part of the price, leaving the matter between him and the vendors to some future arrangement, which is not shown, and does not affect the validity of the assumption to pay these notes as a part of the price of the property purchased by the defendant. His subsequent effort to change this notarial act was purely ex parte, and was never acceded to by the vendors. The denial of the right of the plaintiff to these notes (because one only is indorsed, and was indorsed by the payee, a married woman, without special authority from her husband,) was not made in the answer, and as the defendant is not the maker, but is bound only by his notarial agreement, and the identity of the notes is not denied, the question in which defendant is concerned is, whether he can safely pay to the present holder. Of this we think there can be no doubt, if his notarial obligation is binding.

In our comments on the above bill of exceptions we have clearly indicated that he is so bound. It is contended on his behalf that J. Q. Packard, one of his vendors, made judicial admissions in his suit against Ober, Atwater & Go., that the act in question was not a sale, but a giving in payment of an indebtedness of ten thousand dollars to said firm, and the plaintiff, deriving her right to sue through him, is bound thereby. Such is not our appreciation of the pleadings in that case, if they can have any application in this case. They were made up with reference to the annulment of a compromise between said J. Q. Packard and Ober, Atwater & Co., in which J. Q. Packard found it necessary to allege that the transfer of this property extinguished that amount of indebtedness, and no obligation was made, or was necessary, as to the other portion of the price. There is no allegation anywhere in said proceedings denying that the total price was seventeen thousand five hundred dollars, of which seven thousand .five hundred dollars was due to the vendor of J. B. Packard, and represented by the notes in this suit, or denying that defendant assumed to pay them. But the defendant here does not make this a ground of defense. The substance of the answer is, that he never became the purchaser of said property, and never assumed to pay'said mortgage notes, and that if it so appears in the notarial act, such stipulation was erroneously inserted, and was not the intention of the contracting parties.

The evidence does not, in our opinion, sustain the defense.

In the litigation referred to the decree of this court protected the defendants, of whom this defendant was one, from paying the amount of this assumption twice, by authorizing them to retain in their hands for a sufficient time the amount of the mortgage so assumed. The presumption is that the decree was complied with, and the défendants therein availed themselves of its provisions in this regard, and that the liability to the creditor in that mortgage is the only existing obligation to be. considered in the premises. The ■ decree in that case clearly the existence of the mortgage, and the liability on the assumption in the sale by the Packards to the defendant, Ober.

We can ñnd no legal grounds in this record to exempt the defendant from the obligation of his assumption to pay this debt as a part of the price of the property purchased by him, whether for himself individually or for the benefit of his firm.

It is therefore ordered that -the judgment appealed from be reversed, and that plaintiff recover of defendant, A. Gf. Ober, the sum of §5631 26, with eight per cent interest from November 6,1869, and costs.