#### WASHINGTON STATE BANK v. STEWART et al.

No. 1164.

Court of Appeal of Louisiana. First Circuit.

June 30, 1933.

A. M. Guilbeau, of Opelousas, for appellant.

L. A. Fontenot, of Opelousas, for appellee.

MOUTON, Judge.

A promissory note for $300 was executed in solido by Mrs. A. Stewart, Mrs. Jimmie Stewart Brock, J. B. Brock, and which was indorsed by Will T. Stewart.

Payments were made on the note reducing it to $175, for' which suit was brought by plaintiff, Washington State Bank, against the parties on the note, makers and indorser.

Mrsi. A. Stewart, Mrs. Jimmie Stewart Brock, and J. B. Brock having made no defense, judgment by default was confirmed’ against them July 15, 1932, and which was recorded on the same date.

The only defendant is Will T. Stewart, in-dorser on the note, who first filed a general denial, and, on the day of the trial, filed a plea of payment.

In this plea, Will T. Stewart alleges that his codefendants, Mrs. A. Stewart and Mrs. *160Jimmie Stewart Brock, transferred real estate to tke Planters’ Trust.& Savings Bank of Opelousas for tke sum of $3,500, tkat pri- or to tke execution of tke sales by wkick tkis real estate was transferred, plaintiff, tke Waskington State Bank, contracted to pay tke virile skare due by Mrs. A. Stewart and Mrs. Jimmie Stewart Brock, on tke note kerein sued upon, and tkat tkis transfer was made witk tke understanding tkat plaintiff bank would not enforce its judgment against Mrs. A. Stewart and Mrs. Jimmie Stewart Brock, wife of J. B. Brock.

Tke contention of defendant under tkis plea of payment is tkat ke skould be relieved from tke payment of two-tkirds of tke amount claime'd, as plaintiff bank kad agreed to settle for tke virile shard due thereon by kis codefendants, Mrs. A. Stewart and Mrs. Jimmie Stewart Brock.

. Tke district judge thought otherwise, and rendered judgment against defendant for tke $175 demanded, from wkick ke prosecutes tkis appeal.

The sole question presented turns upon tke plea of payment, wkick, it is elementary, kad to be sustained by defendant.

It may be stated at tke outset tkat it is indisputably established by Mr. Bailey, cashier of tke plaintiff bank, and by Mr. Will T. Stewart, defendant, tkat no payment was ever made on tke balance of $175 on tke note sued for kerein. Defendant Will T. Stewart is liable for tke whole amount claimed, unless it appears tkat tke plaintiff bank agreed to pay tke virile share due thereon by Mrs. A. Stewart and Mrs. Jimmie Stewart Brock.

It appears tkat tke Planters’ Trust & Savings Bank kad a mortgage on tke real estate wkick was retroceded by Mrs. A. Stewart and Mrs. Jimmie Stewart Brock to tkat bank, as they were unable to pay tke mortgage, wkick counsel for defendant says kad tke effect of extinguishing tkis mortgage by confusion, and thus leaving tke property subject to tke judicial mortgage of plaintiff bank, which had resulted from tke recordation of its judgment against Mrs. A. Stewart and Mrs. Jimmie Stewart Brock.

Referring to these circumstances, counsel for defendant makes tke following statement in his brief: “Tke President of tke Planters Bank and Trust Company accordingly called on tke officials of tke Waskington State Bank and we earnestly believe told them tkat ke would see tkat their judgment would be taken care of in so far as Mrs. Stewart and Mrs. Brock were concerned. Tke testimony on this point is vague, but tke officials of both banks all testify tkat a conference was kad about tke matter.”

Mr. Bailey, cashier of tke plaintiff bank, and Mr. Lacarde, representing the Planters’ Bank & Trust Company, admit they kad a conference in reference to tke releasing of Mrs. A. Stewart and Mrs. Jimmie Stewart Brock for tke skare due by them on tke judgment for $175, amount claimed kerein.

Mr. Bailey says tkat Mr. Lacarde proposed to make a settlement tkat would be agreed to by all parties in interest, and then, ke says: “So far as we know that was as far as tke matter got.” Mr. Bailey further testifies tkat there was no:Offer of any money or consideration for tkis release, and tkat as an act of courtesy tke matter was taken under advisement; tkat they waited to hear from Mr. Lacarde; and tkat, as previously stated by him, “was as far as tke matter got witk us.”

Mr. Lacarde testifies tkat in tke conference it was agreed tkat tke judgment as against Mrs. A. Stewart and Mrs. Jimmie Stewart Brock would be canceled, “provided tke cancellation papers were prepared and submitted to their attorney and it was agreeable to all concerned.”

These cancellation papers, Mr. Lacarde says, were never drawn up nor signed by tke Waskington State Bank. Mr. Lacarde was asked if ke had not promised tke attorney of tke plaintiff bank to pay kirn a fee for tke preparation of these cancellation papers. He said he kad, but tkat tke attorney for tke Waskington State Bank did not “request any fee.” Tkis is ironclad proof tkat na suck papers were ever prepared.

Tke agreement to make tkis cancellation was tentative, was never carried out, and we cannot infer from tke mere fact tkat a conference was held; between the officials of tke two banks tkat Mrs. A. Stewart and Mrs. Jimmie Stewart Brock were released from their virile skare in tke amount demanded, and tkat its payment was assumed by tke plaintiff bank.

There is no evidence to justify suck an assumption, and we therefore find that tke court correctly found defendant liable for tke amount demanded.