Jefferson Securities Co. v. Benoit

• Citation: 92 So.2d 487
• Decision Date: 04 February 1957
• Docket Number: No. 4361,4361
• Parties: JEFFERSON SECURITIES CO. v. May BENOIT.
• Court: Court of Appeal of Louisiana — District of US

Page 487

92 So.2d 487

JEFFERSON SECURITIES CO. v. May BENOIT.

No. 4361.

Court of Appeal of Louisiana, First Circuit.

Feb. 4, 1957.

Jack Rogers, Lake Charles, for appellant.

Plauche & Stockwell, J.R. St. Dizier, Lake Charles, for appellee.

ELLIS, Judge.

The plaintiff is the holder and owner, for valuable consideration, before maturity, of one certain promissory note made by the defendant. The suit seeks judgment against the defendant for the amount of the note plus 8% Per annum interest from maturity, 20% Additional as attorneys fees, and the recognition of a chattel mortgage securing the note.

Upon a trial below judgment was rendered in favor of the plaintiff as prayed for and the defendant has appealed.

The note sued upon was made for $589.50 but was subject to certain credits reducing the face value at the time of the suit to $490.90. It bore 8% Per annum interest from its maturity, which was December 1, 1955. There was a further stipulation for 20% On the aggregate sum of principal and interest as attorneys fees and all costs of court. The chattel mortgage securing the note was upon a used automobile and certain furniture.

The defendant filed an answer in which all of the material allegations of the petition were denied. Affirmative defenses were set forth that, (1) she executed the note in order that her minor son could buy the automobile, but with the understanding that if he did not pay she would not have to; that, (2) included in the note is interest in excess of the legal maximum rate, and, (3), included in the note is a $30 item due by her divorced husband.

The first affirmative defense is urged upon the ground that since the defendant told the plaintiff that she was signing merely so her son could purchase the automobile and she both could not and would not pay it if the minor did not, that the note was taken under such circumstances that no enforceable obligation arose out of the transaction. There is evidence in the record to the effect that she did make such statements to the representative of the plaintiff who handled the matter, but he denied he ever agreed to such a condition. This witness stated he told the defendant she would be totally responsible for the note.

Of course the introduction of parol evidence to vary the terms of the note violates the parol evidence rule, but that part of the evidence dealing with this defense was not objected to when it was first forwarded. Later, similar evidence was sought to be introduced and an objection was made. The court stated such evidence varied the terms of the written instrument, but that he would admit the later evidence in view of the fact that some testimony to the same effect was already admitted without objection. Even if all of this testimony be admitted the defendant has not proven this defense, and upon this point we find no manifest error below.

In considering the second affirmative defense, we find the note was payable to the order of 'bearer' and provided interest after maturity at 8% Per annum. Consequently, we must...