The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-01-19
Supreme Court Decisions.
This court delivered the following decisions yes
terday Associate Justice Taliaferro absent:
by ASSOCIATE JUSTICE R. K. HOWELL.

luiS COult bhO iOhO"ihS NSSAoicA0 -
terday Associate Justice Taliaferro absent:
BY ASSOCIATE JUSTICE R. K. HOWELL.
No. I449-Cyrus w. Field & Co. VS.. New Or
leans Delta Newspaper Company. Appeal from
the Second District Court OF New Orleans. W.
W. Handin for appellants ; Fl. J. Leovy ior self
and d. DsPonte, Rozier and Buchanan Gilmore
for Mrs. BonfoId.
lsnts, the ouly question presented on this appeal
is: Are the members Of the New Orleans Delta
Newspaper Company, who Endorsed the notes
sued on liable without notice of dishonor?
The notes are made by Il. J. Leovy. business
manager, to his own order, and indOrsed by him,
Individually, and before delivery ID plaintiffs. the
first holders, by d. DaPonte and P. E. BOnford,
all of whom were members Of the company.
Ii is urged by plaintiffs that these parties are
mere sureties and not entitled to notice, and in
support OF this position they rely on doctrine in
the case Of Crane, executor, vs. Trudeau, l9 An,
D. 3O8,) in the following words: " In relation to
third persons and bona fde holders, the obliga-
tons of accommodation IDdOrsers are co extensive
with those of indorsers of business paper. 10
aoO,tld be different If the trdnsfree Of note in
dorSed get IL from the maker. In such case the
iadOrstr l1oUld be a surety"
TIE latter doctrine not being essential to the
decision in that case, may be regarded as obtter
but whether correct law or not, IL cannot apply
in this case, here the note Is duly Endorsed Dy
the payee (who ia not the holder) and the subse-
quent indorseTs, thus making It, on its face, COM
mercal paper and the evidence shows that the
defendants intended 10 bind themselves as accom-
mediation indOrSers. And it scenes TO be settled
here, at least, since the case of Weaver vs.. Mar
vel, IL An, p. 5l7, that although they may, in
sense, be sureties, they are entitled to notice.
We must view them as accommodation indorsers,
whose liability depends on the rules applicable 10
negotiable instruments 10 general, and cOnse
uuently the holder must take the steps necessary
To bind any ndoTser OF business paper, according
to the law merchant. They were parties to the
--1.s
on Notes. S. l34, 26s. 2ss, 1872 295. 367. 479. $50
6 N. S. 5l7; II K. ls3 10 An. 50; IL An. 5l7 !;
ii An. 305 l6 An. los.
In the case of Keller vs.. Bsrtine az Wenda,
1ls) it is Said that Z" the circumstance that the in
dorser is sd accommodation indOrser adds cOgency
to the sideTaton in favor CT strict noce Of the
default"
The doctrine on which the necessity of notice
rests seems 10 be the presumption of damage or
prejudice in favor of the indorser, who Is entitled
to recourse over against another party. In
other words, whoever is entitled to recourse
over against another party is presumed in law to
be injured by delay in receiving knowledge OF
non-psyment, Is therefore entitled to prompt no
tice, Gritty on Bills, ass. In this case, the in
dorsers, if notified in due time, may have secured
themselves against or obtained payment from the
maker.
The plaintiffs contend. however, that the New
Orleans Delta Newspaper Company was mere
private partnership, and its members, not being
permitted 10 plead ignorance of their own affairs,
must be held TO know that the notes are not paid,
that the maker knew it, and notice to one was
notice 10 all.
The reply to this is, that plaintiffs have intro.
duced in evidence, the charter, which shows that
none Of the stockholders had any control of, or
ANYTHING TO do with, the business, except Leovy,
the business manager, and that knowledge Is not
necessarily notice. The notes were made paya-
BILE at the Canal Bank, and, although Leovy, as
business manager, may have known that they
were not paid, be did not therefore know, without
legal notice from the holder, or other proper
party, that he would be looked TO for payment as
iDdOrsor. See l Parsons on Notes and Bills, 52l,
SIS 526 and 629.
The Judgment was correctly rendered in favor
of the indOrsers 1t is therefore ordered that the
judgment appealed from be affirmed with costs.
BY ASSOCIATE JUSTICE W. G. WILEY.
No. l445-Alfred Marchand vs. Robert B. Bell
and City Of New Orleans James Mckenzie. ap-
pellant. Appeal from Third District Court of n "
Orleans. &. Schmidt and f. W. Huntington for
plaintiff; Buchanan and Gilmore for Mckenzie.
This action is based On certain orders of Bell on
the city treasurer, amounting to S5llO, which
were not accepted.
Bell answered, admitting the claim, but pre-.
tending he had paid It.
The city plead The general issue, and. that il
ever indebted TO Bell by reason of contracts, the
same were forfeited by Bells failure TO comply
with their terms.
September III, 1866, the city fled supple.
| averIing that, since the original answer, it had
COMPROMISED with Bell by agreeing TO pay him
5000 in full settlement of all his demands also
sveIriDg it " was ready and willing to pay said
sum- in full satisfaction Of the claim aforesaid. 70
| Bell, or any qualified representative, but cannot
| do so without judgment Of court, rendered con.
tradictoriy with plaintiff in this case. the defend.
] ant, r. b. Bell; VIM. Fl. Bell pretending TO be the
assignee or transferee of said claim OF r B. Bell
vs.. the city. and james Mckenzie, who has gar
nisheed the city," The supplemental answer asks
| that the parties concerned be cited to answer aud
assert their respective claims, and that there be
judgment contradictory with all the parties as 70
| how the 5000 shall be distributed, aud that on
payment OF said sum, the city DE released from all
| further responsibility.
II was admitted on trial that W. II. Bell had 10
interest in the matter in question.
Mckenzie answered that the city owes Bell an
amount greatly exceeding the 5000; that, April
| Is, 1866, be obtained final judgment against r.
| B. Bell for $lSS7 SO and interest; that upon said
| judgment he issued execution and TOOK out gar
nishmeIt process against the city, etc., and thai
said attachment ia still in force, binding the city
10 Bell and emitting him 10 be paid the amount oil
| his judgment, interest and costs.
On the trial there was judgment against X. b
| Bell for the amount claimed, and It was further
ordered that the city pay over to plaintiff, A. Mar
| chsBd $500, the amount admitted TO be due Bel
as contractor, in preference to all other claim
ants in part satisfaction of his judgment against
| Bell. The demand set up by Mckenzie was dis
missed, and be and the city have appealed. De
PENDANT, r. B. Bell. has not appealed, and as to
him the judgment is now res jlGdicdtd.
| After reviewing the record and arguments, the
court conclude with the following decree: 1t ID
ordered that the city of New Orleans retain the
/ amount IS aforesaid demanded by James hcken
zie and hold the same subject to the action OF the
| District Court in the case OF James Mckenzie vs.
| the city Of New Orleans without prejudice to the
right Of the plaintiff. A. Marchand to intervene in
that suit and contest the validity Of the claims OF
said Mckenzie vs.. r, B. Bell and the city of New
| Orleans made garnishee, and that plaintiff and sp
! pellant pay costs Of appeal.