Spiller v. Davidson

4 La. Ann. 171

Opinion

The judgment of the court was pronounced by

Slideli.., J.

The plaintiff alleges that, in 1839, he placed a note in-the hands of the defendant for collection, and that the defendant has made no effort whatever to obtain a judgment, but has permitted it to become extinguished by prescription; that he has retained .the note in his possession and has transferred it for his own benefit; and by his professional neglect and misconduct has made himself liable for its amount. The defendant pleaded the general issue. Pie also pleaded that die plaintiff had failed to furnish the evidence necessaiy to establish the validity of the note; that he had offered to return the note; and has always held it subject to the plaintiff’s order. He deposited the note with the clerk of the court at the time of filing his answer.

The noto is dated, in October, 1836, is payable ai 'twelve months, and is not negotiable in its form, being a promise to pay to Isaac B. Shipler. It purports to be signed by the mark of the maker, Amelia Gordon.

As the instrument was not negotiable, it was not subject to the prescription of five, but of ten years. It is, therefore, not yet prescribed. Whiting v. Prentice, 12 Rob. 141, &c. The judgment of the court below based upon the supposed extinction of the note is, therefore, erroneous.

In an action of this sort it is incumbent on the plaintiff to show that he had a valid claim, which has been impaired or lost by the negligence or misconduct of the attorney. The evidence does not establish the existence now, or at any time, of a valid claim in favor of the plaintiff against Amelia Gordon or her succession.

It is, therefore, decreed that, the judgment of the court below be reversed, and that there be judgment for the defendant, with costs in both courts.