Cambon Bros. v. Suthon

• Decision Date: 01 March 1920
• Docket Number: 23321
• Citation: 84 So. 496,147 La. 66
• Court: Louisiana Supreme Court
• Parties: CAMBON BROS. v. SUTHON et al. SUTHON et al. v. CAMBON BROS

84 So. 496

147 La. 66

CAMBON BROS. v. SUTHON et al.

SUTHON et al. v. CAMBON BROS

No. 23321

Supreme Court of Louisiana

March 1, 1920

Rehearing Denied May 3, 1920

Appeal from Twentieth Judicial District Court, Parish of Terrebonne H. M. Wallis, Jr., Judge.

Proceedings by Cambon Bros. against Miss Fannie Suthon and others to foreclose a mortgage, and suit for injunction restraining foreclosure by Widow Lucius Suthon and others against Cambon Bros. were consolidated, and judgment rendered restraining the foreclosure, from which Cambon Bros. appeal.

Reversed, and judgment rendered for Cambon Bros.

Butler & Wurzlow, of Houma, and Merrick, Gensler & Schwarz, of New Orleans, for appellant.

Harris Gagne, of Houma, for appellees.

OPINION

SOMMERVILLE, J.

January 6, 1913, Miss Fannie Suthon, Mrs. Manette Suthon, widow of Lucius Suthon, Miss Mary Suthon, Miss Georgiana Suthon, and Hugh S. Suthon made and executed a note secured by mortgage in favor of Maurice Cambon for $ 16,125, bearing 8 per cent per annum interest from date, and bearing on certain property in the city of Houma belonging to the Suthons, and payable five years after date. The mortgage was accepted, and the note taken by Maurice Cambon for Cambon Bros., plaintiffs herein. The latter, on February 13, 1918, caused executory process to issue on said mortgage, and the property mortgaged was seized and advertised for sale. The defendants, Suthons, enjoined the execution of the sale on the ground of want of consideration, except to the extent of $ 3,000, and Cambon Bros. have appealed from a judgment perpetuating the injunction.

On the trial, evidence was offered on behalf of Cambon Bros. to show the exact consideration of the note and the mortgage, but, on objection being made that the terms of a certain written document entered into between Cambon Bros. and the Whitney Bank of New Orleans, wherein Cambon Bros. subordinated the judicial mortgages held by them on the Greenwood Planting & Manufacturing Company to the bank's mortgage, could not be altered or varied by parol evidence, the objection was sustained and the evidence was excluded.

There was error in the ruling of the court. The Code provides in article 1900:

"If the cause expressed in [as] the consideration should be one that does not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration."

It was stated by counsel for Cambon Bros. at the time the testimony was offered that the testimony would go to show the exact and full consideration of the note sought to be executed upon; and evidence of that character was competent and admissible. Delabigarre v. Second Municipality, 3 La.Ann. 230; Brown v. Brown, 30 La.Ann. 966; Jackson v. Miller, 32 La.Ann. 432; Sere v. Darby, 118 La. 619, 43 So. 255.

Counsel for the Suthons says, on his brief:

"If the door is open to the introduction of parol evidence herein, these ladies will probably be ruined."

But that is not a valid objection to competent testimony.

Although the parol evidence was excluded, there is sufficient documentary evidence in the record to show the consideration for the note sued upon. Therein appears a document executed by the Cambon Bros. and the Suthons of the same date, January 6, 1913, as the mortgage and note sued upon, and there is therein stated the exact consideration for the $ 16,125 note and mortgage given by the Suthons. It shows the real meaning and actual intent of the parties. This document was attached to the petition of intervention filed by the Suthons, and it contains the allegation that the Suthons are the stockholders of the Greenwood Planting & Manufacturing Company on which the Cambon Bros. held judicial mortgages aggregating $ 13,125, with interest; and it was agreed between the parties to that document that, in consideration of the transfer by Cambon Bros. to the Suthons of their judicial mortgages, and the assumption of a $ 3,000 mortgage upon the town property of the Suthons in Houma, La., they, the Suthons, would give to Cambon Bros. the note for $ 16,125, secured by a mortgage, bearing upon the town property of the Suthons. The sale...