Harries v. Courcier

• Decision Date: 21 January 1929
• Docket Number: 10,604
• Citation: 119 So. 905,10 La.App. 22
• Court: Court of Appeal of Louisiana — District of US
• Parties: HARRIES v. COURCIER

119 So. 905

10 La.App. 22

HARRIES v. COURCIER

No. 10,604

Court of Appeals of Louisiana, Orleans

January 21, 1929

Rehearing Refused February 11, 1929.

Decree Supreme Court, Writ of Certiorari and Review Refused March 26, 1929.

Appeal from the Civil District Court for the Parish of Orleans Division "A". Hon. Hugh C. Cage, Judge.

Action by Edmund Harries against Richard J. Courcier et al.

There was judgment for defendant and plaintiff appealed.

Judgment reversed and rendered.

Judgment reversed.

Lemle Moreno and Lemle, of New Orleans, attorneys for plaintiff, appellant.

Dart and Dart, and L. L. Dubourg, of New Orleans, attorneys for defendant, appellee.

OPINION

WESTERFIELD, J.

The facts in this case are stated at length, in an opinion overruling the judgment maintaining an exception of no cause of action, rendered by this Court, April 27, 1925. (2 La.App. 134.)

The case was subsequently tried on the merits, and judgment rendered in favor of defendants. Plaintiff has again appealed. It is necessary to repeat briefly the following facts.

The defendants, Richard and Albert Courcier, purchased from the Nola Motor Company, Inc., an "Indiana" motor truck by notarial act of sale and chattel mortgage, for the price of $ 3,346.00. There was some cash paid but the consideration was largely credit, represented by promissory notes. There was one note for $ 659.72, payable sixty days after date, and, twelve notes, due respectively 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 months after date, each for an equal amount and aggregating $ 2,509.63, all made payable to the order of defendants and by them endorsed. Plaintiff purchased all the notes immediately following their execution, and, all were paid except one, the note for $ 659.72. That one, had been partly paid, the balance due being $ 285.59, for which amount this suit was instituted.

This note, bears on its face the usual paraph of the notary before whom the act of sale and mortgage was passed, "Ne Varieteur for identification," etc. In the act, it was stated that the note was to be paid out of the sale of an International truck, the explanation being that the parties could not agree on the exchange value of the International truck, consequently, it was stipulated that it should be sold to the best advantage, and, the proceeds applied to the extinguishment of this note, the excess, if any, to be paid to the Courciers.

The trial court was of the opinion that the notarial paraph identifying the note with the act of sale and mortgage had the effect of reading into the note all of the conditions and obligations expressed in the act of sale and mortgage, and that, the words "payable out of sale of their International truck" meant that the note was payable only out of the proceeds of such sale. There being no proof that the truck had been sold in the record, plaintiff was denied recovery.

The first question to be considered is the effect of the notarial paraph upon the negotiability of the note.

Under Section 52, of Act 64, of 1904 (Uniform Negotiable Instrument Act) "A holder in due course is a holder who has taken the instrument under the following conditions:

"1. That it is complete and regular upon its face;

"2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;

"3. That he took it in good faith and for value;

"4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it."

Section 1 of Article 1 of the same act reads as follows:

"An instrument to be negotiable must conform to the following requirements:

"1. It must be in writing and signed by the maker or drawer;

"2. Must contain an unconditional promise or order to pay a sum certain in money.

"3. Must be payable on demand, or at a fixed or determinable future time.

"4. Must be payable to order or to bearer, and,

"5. Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty."

Section 3 of Article 1 of the same act reads as follows:

"An unqualified order or promise to pay is unconditional within the meaning of this Act, though coupled with:

"1. An indication of a particular fund out of which reimbursement is to be made, or a particular account to be debited with the amount; or,

"2. A statement of the transaction which gives rise to the instrument. But an order or promise to pay out of a particular fund is not...