McStea & Value v. Warren & Crawford

26 La. Ann. 453

• Court: Supreme Court of Louisiana
• Decided: May 15, 1874
• Docket: No. 3127
• Status: Published

Opinions

Ludeling, C. J.

The plaintiffs are indorsees of a draft for $939 68 drawn on the twentieth of March, 1362, by J. & E. Roberts of Mississippi, on their factors, Warren, Gil ni ore & Co., who accepted the draft. It was an accommodation acceptance. In May, 1866, the drawer paid $400 on the draft. On or about the day this partial payment was made, the plaintiffs agreed to take six hundred dollars for the balance of the note, provided that sum were paid on or before the first of January, 1870. The defendants, successors of Warren, Gilmore & Co., and agents of J. & E. Roberts, offered to pay the plaintiffs the amount stated within the time agreed upon — which they refused to take — -no real tender or deposit was made.

Warren & Crawford, as agents of J. & F. Roberts, had a right to tender performance of the contract for the Roberts, and McStea & Yalue were bound to receive the money in discharge of the contract of J. & F. Roberts. 14 La. 214; 3 La. 385.

This offer to discharge the obligation of the Messrs. Roberts, by the payment of $600, was peremptorily refused by the plaintiffs, and this refusal dispensed with the actual production of the money, in the presence of witnesses, as required by art. 407 of the Code of Practice, as no one is required to do a vain thing. 2 Pars, notes and bills, p. 623.

Interest, therefore, should have been allowed only from judicial demand. C. P. 415.

The evidence shows that the amount agreed to be taken in satisfaction of the note was six hundred dollars ; there is an error of fifty dollars therefore in the judgment.

It is therefore ordered and adjudged, that the judgment of the lower court be amended by reducing the amount thereof to six hundred dollars and by allowing interest only from judicial demand.

It is further ordered that the appellees pay costs of appeal.