Gaspard v. Lachney

• Decision Date: 07 January 1957
• Docket Number: No. 8613,8613
• Court: Court of Appeal of Louisiana — District of US
• Parties: Eric P. GASPARD, Plaintiff-Appellant, v. Winnis LACHNEY, Defendant-Appellee.

Page 277

92 So.2d 277

Eric P. GASPARD, Plaintiff-Appellant, v. Winnis LACHNEY, Defendant-Appellee.

No. 8613.

Court of Appeal of Louisiana, Second Circuit.

Jan. 7, 1957.

Charles A. Riddle, Jr., Marksville, for appellant.

Eugene N. Scallan, Marksville, for appellee.

HARDY, Judge.

Alleging himself to be the holder and owner of a promissory note executed by the defendant, plaintiff instituted this suit for the recovery of the face amount of the note, together with interest and attorney's fees, as provided therein. After trial there was judgment in favor of defendant rejecting plaintiff's demands, from which he brings this appeal.

The evidence on trial was not transcribed but a summary thereof has been supplied by a stipulation of facts agreed upon by counsel for the parties which is incorporated in the record. We quote the stipulation in its entirety as follows:

'During the month of July or August, 1953, Eric P. Gaspard claimed of the defendant, Winnis Lachnay, the sum of approximately $148.00 on an open account, and the defendant denied that he was indebted to the plaintiff, claiming that he had paid him, but that if he was indebted to him at all it was in an amount of approximately $40.00. The account was one for wines and liquors, but defendant testified that he was convinced that it was paid, but agreed that he would concede his indebtedness if plaintiff could present evidence that he had not paid the account or had purchased other liquor since payment of the account. Plaintiff sued on an open account and on a note. On the trial he abandoned the claim on the open account. The events giving rise to the execution of the note and the manner in which it was executed are as follows:

'During the month of August, 1953, plaintiff attempted to get defendant to pay him this money which he contended was owed to him, but which defendant disputed. In spite of defendant's contentions that he did not owe plaintiff as plaintiff contended, defendant agreed to accompany plaintiff to The Union Bank to make a loan. It was then that plaintiff brought defendant to The Union Bank in Marksville, Louisiana, where the defendant went inside and the plaintiff remained outside. Shortly afterwards defendant returned outside with the note prepared by the President of the bank for $160.00, the note having already been signed by defendant. It was then that plaintiff also signed the note. Plaintiff contends he signed the note with respect to defendant as endorser so that defendant could pay him the money plaintiff claimed defendant owed him; while defendant contends that plaintiff signed it as maker and defendant as endorser, or, at best, as co-maker. Defendant then returned to the bank with the note, discounted it and brought the proceeds to the plaintiff who was awaiting him at the curb. These proceeds, $160.00 less the interest retained by the bank, defendant handed over to the plaintiff and plaintiff then returned to Winnis Lachnay about 'Two or Three Dollars'.

'When the note became due in 1954 the parties were notified; plaintiff went to the bank, discovered the note had not been paid and then paid the accrued interest thus extending the note. Again in September of 1955, when the note became due and unpaid, the parties being notified, plaintiff paid the bank the amount of the note plus accrued interest. The bank then endorsed the note to plaintiff 'without recourse'. It was then that plaintiff made demand upon defendant to pay the note which plaintiff now held, and upon his refusal, plaintiff sued defendant thereon.'

By way of clarification of one point of fact it should be observed that plaintiff's demand against defendant in the amount of $72.50 on open account, which demand was dismissed in open court on date of the trial, clearly represents an account for purchases of liquors and beverages allegedly made by defendant upon dates subsequent to the execution of the note. This account, therefore, has no bearing upon the incidents which led up to the execution of the note and the subsequent developments connected therewith.

The gist of the defense appears to be the contention on behalf of the defendant that plaintiff was not an accommodation party, nor was he a holder of the note sued on in due course, in as much as he purchased the note from the bank after maturity. It is further urged that plaintiff was not an accommodation maker nor endorser of the note under the definition set forth in LSA-R.S. 7:29, which reads as follows:

'An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person.'

The argument relies for its validity upon the proposition that plaintiff received the benefits flowing from the execution of the note, which fact serves to remove him from the category of accommodation parties.

It is true that plaintiff received the proceeds of the note, less discount and less a few dollars which he permitted defendant to retain, but it is also true that plaintiff received this money not as value or benefit or advantage originating from the execution of the negotiable instrument but in settlement of an open account against defendant, his debtor. This distinction is not as...