Vance v. Depass

2 La. Ann. 16

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

Opinion

The judgment of the court was pi'onounced by

Slidem,, J.

The defendant is the endorser of a promissory note, and received no notice of protest. The principal enquiry is, whether there was such an exercise of due diligence as excused the want of notice.

It appeal’s beyond dispute that Depass lived in New (Means at the date of the institution of this suit, which was brought only eight days after pi’otest, and that he also lived in New Orleans before the note was protested; and though his actual residence in New Oi’leans at the date of the protest is not positively shown, yet the inference flows very conclusively from all the circumstances in pi'oof that he had such residence. Depass was a stevedoi-e, and was generally to be seen on the wharves or levee. The notary says he met him in New Orleans the next day after the pi’otest, but said nothing to him; and four days afterwards the plaintiffs’ agent went to him to ask payment, and found him. On the day of protest the notary went to the house which Depass formerly occupied, but found it occupied by another person, who could not inform him whither Depass had removed. He states also that he enquired of a great many persons in the neighborhood, and spent an hour in attempting to obtain information, and also looked for him on the levée, but unsuccessfully. He then gave the notice to the plaintiffs, and deposited a duplicate, addressed to Depass at New (Means, in the post office at New Orleans.

We do not think there was such diligence as the law requires to excuse notice. No enquiry was made of the drawer of the note, nor of his syndic, nor of another person of the same sii’name, whose name was in the directory.

* See Story on Bills, § 316 and notes. Chitty on Bills, 488. And the opinion of Lord Ellenborongh, in Beveridge v. Burgis, 3 Campbell, 262.

But it is contended that there was a subsequent promise by Depass to pay this note. We do not consider the promise as satisfactorily proved. A witness says, that he demanded payment of Depass, who stated that he had been very unfortunate in endorsing this note, that he could not pay it, that the estate of Pigneguy (the maker) was owing him money, and that he had no other means of paying than from the estate of Pigneguy. Witness advised Depass to go and see the plaintiffs’ attorney, but he said it was useless — he had nothing further to say. This conversation took place four or five days after the protest. It establishes no promise to pay, for where there has been laches on the part of the holder discharging the endorser, the promise, to be obligatory, must be deliberately made, in clear and explicit language, and amount to an admission of the rights of the holder, or of a duty and willingness to pay. See Story on Notes, § 363. Judgment affirmed..

The endorser’s name was Isaac Dcpciss. The directory contained the name of “ K. Depass.”