Alexander v. Occhipinti

• Court: Court of Appeal of Louisiana
• Writing for the Court: GULOTTA; REDMANN
• Citation: Alexander v. Occhipinti, 251 So.2d 188 (La. App. 1971)
• Decision Date: 15 July 1971
• Docket Number: No. 4557,4557
• Parties: Mrs. Nelda HARRISON, divorced wife of Stanley W. ALEXANDER v. Roy F. OCCHIPINTI.

Page 188

251 So.2d 188

Mrs. Nelda HARRISON, divorced wife of Stanley W. ALEXANDER v. Roy F. OCCHIPINTI.

No. 4557.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1971.

Denis A. Barry, II, Doyle, Smith, Doyle & Watters, F. Henri Lapeyre, Jr., New Orleans, for plaintiff-appellant .

Lee C. Grevemberg, New Orleans, Robert I Broussard, Gretna, for defendant-appellee.

Before REDMANN, GULOTTA, and BOUTALL, JJ.

GULOTTA, Judge.

This is a suit on a promissory note. From an adverse judgment plaintiff brings this appeal.

Plaintiff, Mrs. Nelda Harrison, also known as Mrs. Brenza, was the divorced wife of Stanley W. Alexander, for whom subsequently her Succession was substituted as plaintiff through the testamentary executor of her estate, Eben Hardie, Jr. Defendant, Roy F. Occhipinti, is the maker of a promissory note dated November 7, 1967, and made payable to 'Mrs. Nelda Brenza' in the sum of $40,000 which was due in one installment payable on November 7, 1968. Defendant admits making out the note, signing it was giving it to plaintiff; however, he denies having received any consideration for the note.

The trial judge having decided in favor of defendant and having dismissed the suit, we must determine whether the trial judge committed manifest error and whether there was in fact consideration for the note.

The testimony of Mr. Occhipinti is by necessity the most reliable explanation of the events which led to the making of this note as plaintiff is now deceased having been murdered in her Gulf Coast home on March 12, 1969. Defendant's account is that prior to the alleged transaction, Mrs. Brenza and defendant had been both social and business acquaintances. Mrs. Brenza was having marital difficulties with her then husband, Stanley W. Alexander, and was having difficulty in dissolving the 'community' as well as partitioning the property.

Plaintiff attempted to show the decedent's reference to community property is a contradiction in defendant's testimony in that the decedent could not have referred to community property since Mississippi does not recognize this concept in law.

Defendant contends that Mrs. Brenza placed a long distance call to him from her residence in Pass Christian, Mississippi, informing him that she was coming to New Orleans to discuss her marital difficulties with him concerning the 'community' property between her and her former husband, Stanley W. Alexander. Mrs. Brenza came to defendant's office at the Desta Company in November of 1967.

Defendant relates that upon her arrival at his office Mrs. Brenza informed the defendant that she thought she could 'buy her husband' out for $40,000 cash and that she preferred not to withdraw the money from any account. Occhipinti further stated that plaintiff's idea, rather, was to give the impression that the community had loaned $40,000 to the defendant who had in return executed a promissory note for that amount. Through this method, in the event the deal with her husband was unsuccessful, it would appear that it was a loan from the community. That portion of the alleged scheme which relates directly to the issue at bar, according to defendant, is that although the defendant was not to receive the $40,000, he was to execute a promissory note in that sum payable to plaintiff which was to be marked paid by plaintiff and returned to the defendant.

Defendant's account of their conversation and activities was attested to in part by one of defendant's employees, Leo J. Miceli, who heard what transpired through an open door of the small anteroom which connects with the larger room where plaintiff and defendant were engaged in discussion. Mr. Miceli's recollection of what transpired is as follows:

'And she (plaintiff) had said that--asked Roy if he could help her out. And then, she went on to say that she wanted to get some money or something and would he sign a note to show that she, what she had done with this money. And then after she had showed this note, she was going to mark it paid and return it to him, but he was not to receive any money or anything like that. Just to sign this to help her out. A few other things were said and she started crying again. That's when the door was closed.'

Defendant further testified that in order for plaintiff to have $40,000 made a available to her through the bank, she had that sum removed from her stock fund and then deposited in her bank account. We note that on November 6, 1967, a $50,000 deposit was recorded on the original ledger sheet of the bank for the account of Nelda Brenza.

Defendant asserts that prior to these events and during this subject transaction, plaintiff and defendant were on amicable terms and that even subsequently, plaintiff had offered to either buy into defendant's business or to lend the sum of $250,000 to go into a jewelry business with defendant.

The record reveals that defendant accompanied plaintiff from his office to the Hibernia National Bank in New Orleans on November 7, 1967. The deposition of John J. Deutschmann, Jr., a friend and business acquaintance of defendant, indicates that while joining the others for lunch, he walked with them to the bank and waited outside for Mr. Occhipinti and Mrs. Brenza who subsequently came out together after which the three proceeded to lunch.

The testimony of Gervis Wyble, assistant cashier at the Hibernia National Bank of New Orleans in November of 1967, substantiates Mr. Occhipinti's suggestion that the large deposit into Mrs. Mbenza's account the previous day had been a transfer from her stock fund. Mr. Wyble referred to a deposit Hibernia Bank received in the form of a check from Whitney Bank from Merrill Lynch, Mrs. Brenza's broker. Mr. Wyble stated he had another officer of the bank, Charles Longmire, accompany him as a witness in turning over the $40,000 cash to the plaintiff and defendant. Plaintiff cashed her personal check for the $40,000 after approval had been given by Mr. Wyble. Wyble further testified that after the money was released by the bank, since Mr. Wyble wished it counted and Mrs. Brenza chose not to do so, Mr. Occhipinti took the money, counted it, and placed it in a briefcase which he carried out of the bank.

It is necessary to elicit from the record whether the $40,000 cash was ever actually transferred to defendant as owner thereof with absolute control. Proof of such transfer would be uncontrovertible evidence that the note was executed for valuable consideration.

The record reveals that Mr. Occhipinti carried the priefcase containing the $40,000 from the bank to Delmonico's Restaurant and then to Crescent City Motors on St. Charles Avenue where Mrs. Brenza purchased a Mercedes-Benz automobile from Oliver Cinnater, owner of Crescent City Motors. Mr. Cinnater was unable to remember who accompanied Mrs. Brenza and could not identify defendant. He did testify that a man was with her.

According to defendant and Mr. Deutschmann, after the purchase and while Mrs. Brenza was in her automobile, Mr. Occhipinti handed the briefcase to her which she placed on the seat of the car. Mrs. Brenza then left the automobile agency alone presumably to return to her home in Mississippi. The record is absent any other explanation of what happened to the briefcase carrying $40,000 save that Mrs. Brenza was the last party to be seen with it driving in her newly acquired automobile. We are by circumstances forced to rely on the testimony of Mr. Occhipinti, as well as the testimony of Mr. Deutschmann. Mr. Cinnater, who sold the automobile to plaintiff, could not recall any conversation between Mrs. Brenza, Occhipinti, and Deutschmann, having testified that he remembered only one person accompanying Mrs. Brenza to the automobile agency.

It is a cardinal rule that the law presumes consideration was given for a promissory note. LSA-R.S. 7:24 reads:

'Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.'

Defendant contends that because the $40,000 was never transferred to him, plaintiff was not a holder in due course, and, hence urges that a defense of want or lack of consideration for the execution of the note is available to him. The availability of such defenses to a suit on a negotiable instrument as between the maker and the payee is recognized and well settled in the jurisprudence of this State. Service Parts Company v. Culpepper, 142 So.2d 498 (La.App.2d Cir. 1962); Shaddock v. Hawkins, 190 So. 843 (La.App.2d Cir. 1939); Belknap Hardware & Mfg. Co. v. Hearn, 179 La. 909, 155 So. 396 (1934); Maison Blanche Co. v. Putfark, 9 La.App. 567, 119 So. 289 (1928).

The presumption in the law of consideration may thus be overcome by defendant's introduction of evidence casting suspicion upon the reality of the consideration. The court in Bernard Brothers v. Dugas, 229 La. 181, 85 So.2d 257 (1956) explained the nature of this rebuttable presumption:

'Under the Negotiable Instruments Law of this state and the jurisprudence of this court, every negotiable instrument is deemed prima facie to have been issued for a valuable consideration. R.S. 7:24; Moss v. Robinson, 216 La. 295, 43 So.2d 613, and cases there cited. For this reason, a plaintiff suing on a negotiable instrument is not required to produce any proof of consideration when he introduces the instrument into evidence, and this remains true in spite of the fact that the defendant in his answer may have alleged lack of consideration. Absence or failure of consideration is a matter of defense as against any person not a holder in due course, and partial failure of consideration is a defense pro tanto. R.S. 7:28. The burden is thus on the defendant of going forward with the evidence and rebutting the prima facie case in favor of plaintiff. However, if during the trial of the case the defendant offers evidence which casts doubt upon the...