Thompson v. H & S Packing Co., Inc.

540 So. 2d 371, 1989 La. App. LEXIS 372
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1989
StatusPublished
Cited by1 cases

This text of 540 So. 2d 371 (Thompson v. H & S Packing Co., Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. H & S Packing Co., Inc., 540 So. 2d 371, 1989 La. App. LEXIS 372 (La. Ct. App. 1989).

Opinion

540 So.2d 371 (1989)

Wayne THOMPSON
v.
H & S PACKING COMPANY, INC.

87 CA 1542.

Court of Appeal of Louisiana, First Circuit.

February 28, 1989.

Johnny Moore, Ossie Brown, Baton Rouge, for plaintiff-appellee Wayne Thompson.

Phil E. Miley, Baton Rouge, for defendant-appellant H & S Packing Co., Inc.

Before CARTER, LANIER and LeBLANC, JJ.

CARTER, Judge.

This appeal arises out of a suit on a promissory note.

FACTS

On August 20, 1986, Wayne Thompson filed suit against H & S Packing Company, Inc. (H & S), alleging that he was a holder in due course of a promissory note, dated May 8, 1981, in the principal sum of $130,000.00.

The dispute among the parties arises from the following facts. J.L. NeSmith and H. David Hughes were stockholders in H & S. Thereafter, Hughes sold his interest in the corporation to the corporation. Pursuant to this transaction, H & S, through its president NeSmith, executed an installment promissory note, dated May 8, 1981, payable to the order of H. David Hughes. The note was payable in the principal sum of $130,000.00, provided annual interest of twelve percent, and specified payment as follows:

In equal monthly installments, including principal and interest, in the amount of One Thousand, Eight Hundred Sixty-five & 13/100 ($1,865.13) Dollars each, the first due and payable on or before the 8th day of June, 1981, and a like installment due and payable on or before the 8th day of each succeeding month thereafter until all have been paid, with the maker having the right to prepay all or part of this note at any time without penalty.

H & S made monthly payments to Hughes through November 8, 1983.

*372 On or about August 9, 1982, Hughes endorsed the aforementioned note to Wayne Thompson with the following language:

Note assigned to Wayne Thompson August 9, 1982 to secure loans

/s/ H. David Hughes

Thompson never received any payments on the note.

After trial, the trial court rendered judgment in favor of Thompson and against H & S for $110,000.00, together with 12% interest from November 8, 1983, until paid. The trial court also awarded Thompson a sum equal to 10% of the principal and interest, as provided in the note, as reasonable attorney's fees and cast H & S for all costs. From this adverse judgment, H & S appeals, assigning the following errors:

1. The trial court erred in holding that Thompson was a holder in due course.
2. The trial court erred in fixing the amount due under the promissory note sued upon at $110,000.00.

ASSIGNMENT OF ERROR NO. 1

The first issue is whether Thompson sustained his burden of proving his status as a holder in due course.

LSA-R.S. 10:3-302(1) defines a holder in due course as:

[1] [a] holder who takes the instrument

(a) for value; and

(b) in good faith; and

(c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.

The status of a holder in due course is significant to the extent that, as such, he takes the instrument free from all claims to it on the part of any person and all defenses of any party to the instrument with whom the holder has not dealt, with minor exceptions. LSA-R.S. 10:3-305.

In order for one to enjoy the status of a holder in due course, the four elements of LSA-R.S. 10:3-302(1) must exist simultaneously during possession of the negotiable instrument. LSA-R.S. 10:3-307(3) and the corresponding comments to the article indicate that the person claiming the rights of a holder in due course must sustain his burden by affirmative proof of all elements. Asian International, Ltd. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 435 So.2d 1058 (La.App. 1st Cir.1983).

HOLDER

In Asian International, Ltd. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., supra, this court set forth the requirements of a holder as follows:

Any person who asserts rights of a holder in due course must first prove that he is a "holder". A holder is a person who is in possession of ... an instrument ... drawn, issued, or endorsed to him or to his order or to bearer or in blank. La.R.S. 10:1-201.
Negotiation is the process by which the transferee of an instrument becomes a holder. La.R.S. 10:3-202(1). The comments to that article in the UCC indicate that negotiation is a special form of transfer, the importance of which lies in the fact that it makes the transferee a holder. Stated another way, an endorsement by a holder of an instrument payable to order is necessary for a negotiation of the instrument, for only by a negotiation may a third party become a holder of the instrument. "Developments in the Law, 1980-1981: Banking Law," 42 LLR 330 (1982). (footnote omitted) [435 So.2d at 1061].

LSA-R.S. 10:3-202 provides as follows:

(1) Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary endorsement; if payable to bearer it is negotiated by delivery.
(2) An endorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.

(3) An endorsement is effective for negotiation only when it conveys the entire instrument or any unpaid residue. If it *373 purports to be of less it operates only as a partial assignment.

(4) Words of assignment, condition, waiver, guaranty, limitation or disclaimer of liability and the like accompanying an endorsement do not affect its character as an endorsement.

The comments to this article indicate that subsection (4) is intended to reject decisions holding that the addition of such words as "I hereby assign all my right, title and interest in the within note" prevents the signature from operating as an endorsement. Such words, according to the comments, usually are added by laymen out of an excess of caution and a desire to indicate formally that the instrument is conveyed, rather than with any intent to limit the effect of the signature.

In the instant case, the note was delivered to Thompson with the following endorsement:

Note assigned to Wayne Thompson August 9, 1982 to secure loans

/s/ H. David Hughes

Clearly, under the provisions regarding negotiable instruments, the aforementioned endorsement by Hughes transferred the note to Thompson. As such, Thompson became a holder.

H & S contends that the aforementioned endorsement was an attempt by Hughes to assign or pledge the note to Thompson. H & S reasons that the note, however, was never pledged because of the failure of the parties to comply with the formalities of LSA-C.C. art. 3158.[1]

*374 Generally, the only formality required for the pledge of a negotiable note is delivery. Mardis v. Hollanger, 426 So. 2d 392 (La.App. 2nd Cir.1983), writ denied, 430 So.2d 93 (La.1983); Acadiana Bank v. Foreman, 343 So.2d 1138 (La.App. 3rd Cir. 1977), affirmed, 352 So.2d 674 (La.1977); American Bank & Trust Company v. Straughan, 248 So.2d 73 (La.App. 1st Cir. 1971), writ denied, 259 La. 746, 252 So.2d 450 (La.1971); Baker Bank & Trust Company v. Behrnes,

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540 So. 2d 371, 1989 La. App. LEXIS 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-h-s-packing-co-inc-lactapp-1989.