New Orleans & Carrollton Railroad v. Mills

2 La. Ann. 824

• Court: Supreme Court of Louisiana
• Decided: September 15, 1847
• Status: Published

Opinion

The judgment of the court was pronounced by

King, J.

The defendants are sued as the1 maker and endorsers of a promissory note. The- maker and- first endorser made no defence to the action, and a judgment was rendered against them-, of which-there is no complaint.. Briggs, the second endorser, pleads in defence that he has been discharged from his liability, in consequence of the- failure of the plaintiffs to cause the note to- be1 protested, or to notify him of its dishonor. The demand against him was rejected1 in the- court below, and the plaintiffs have appealed.

The-note on which-the suit is brought beai'S date the 3d of November, 1843, and was made- payable twelve months thereafter. At its maturity it was not protested-, but, on the 8th of November, 1844!, several days after' maturity,. Briggsi- at the request of the maker, gave the following written waiver: “ Mr. N. Durand and I are the endorsers on a note executed by Thomas Mills in the Carrollton Bank, and have agreecf to waive a protest on the same.” This-waiver, if is contended, is equivalent to a promise made by the defendant subsequent to his discharge to pay the note. If under the evidence this could' be considered as a subsequent promise to pay, it was incumbent on the plaintiff to show that it was made by the defendant with a fill!1 knowledge of his discharge. Story, on Prom. Notes, § 361. 12 La. 468. No such proof has been adduced; but, on the contrary, we are- satisfied from the evidence, that Briggs was ignorant of his discharge at the date- of this waiver, and made it under the belief that the note hndnot yet matured:. The fact of his making a waiver of protest, instead of a direct renewal of his obligation, would, of itself, in the absence of other testimony, be a strong circumstance to show that such was the impression under which he acted. Judgment affirmed.