New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-12-15
ORLEANS, THURSDAY
THR COURTS.
Sixth District Court.


lowing decision:
Plaintiff leased to defendant the building
bearing the number one, on Camp street, and
located at the corner of Canal and Camp.
The lease was for one year from first OctO-
Der, 1869, at the rate Of $500 year, OF $3.50
month. The lessee was to give his twelve
promissory notes, each for the monthly in
stalment. 1t appears, however, that only
nine of the series of twelve notes were
actually signed by Levi, and this deficiency
has given rise to the present suit. Fried
lander alleges that the omission to sign the
three notes, representing the instalments
due on the first Of August, the first of Sep
tember, and the first Of October, was the re-
suit Of inadvertence; that the notes were
ing three (; and that the four sheets and the
lease were sent to Levi for his signature,
who returned them as signed. That the
omission was only discovered about the time
the last notes should become DUE and then
they were sent to Levi with a request that
he siglfed them, and he refused. This is the
substantial relation of the affair, as given
by the two Friedlanders, father and son.
On the other hand, defendant, Levi, pre-
tends in his testimony there was no acci.
dental omission that the notes were not
signed by him because such was the under
standing between himself and Friedlander.
And he explains this by saying that he had
made some repairs on the building leased.
the payment for which had been at lastsettl
between them, and the amount thereof was
fixed at $3.50, being exactly the amount Of
that, for this amount, Friedlander agreed to
remit the rent for the last three months.
And this is the manner in which ]. &. Levi
accounts for the nOn-signing of the three
notes forming the subject matter Of this
suit. This relation of Levi is cOrroborated
by the testimony of one Hetzel, taken under
commission, who swears he was present
when the agreement was entered into and
the nine Aotes and the lease signed.
According to Levi and Hetzel, the notes
and lease were signed in Friedlander's office,
on Car0ndelct street, and this is emphatic
ally denied by the two Friedlanders.
The issue thus presented is simply one Of
facts, involving the veracity Of the Fried
land ders-fatLer and son on one side-and
that of Levi and Hetzel on the other.
have come to the conclusion to believe
the<stateMent Of the plaintiff rather than
that of defendant. 1t is clear one Of them
has sworn to a falsehood, for there is no
middle course to be adopted as the issue is
presented. l do not believe the story Of
Levi and his friend Hetzel, and for the fol
| lowing reasons:
l. The sworn statement OF the affair made
by Levi is positive and clear cOntradic-
| tiOn of the statement made by him in the
answer he filed in this suit. In the answer
| he alleges the same agreement on the part
| Of Friedlander to pay $3.50 for the repairs,
| but he says that in accordance with that
| agreement the notes for the months of July,
| August and September were Cancelled, an
nuled, DESTROYED and returned to him. The
notes could not have been cancelled. de-
| strOyed and returned to him if they were
| never signed; and yet, on the stand as
fx1 bat %t.n
| never were signed at all. How notes
| that were never signed, and still remain in
the possession Of Friedlander, were
destroyed, Cancelled and returned to Levi,
is something which Levi should have ex-
planned, and which he has totally failed to
do. The reason he did not was, presume,
because he could not.
9. The story of Levi about the repairs
and the agreement Of Friedlander to pay
for them, is improbable in the extreme
when all the circumstances as related by
Levi himself are considered. The repairs
were made in October, 1866, and if due by
Friedlander, were due then. Notwithstand-
ing this claim against Friedlander, Levi
paid him fully the rent from October, 1866,
to October, 1867, from October, 1867, to Oc-
tober, 1868, from October, 1868, to October,
1869, making a total of about seventeen
thousand dollars for the three years. If he
had any real claim against Friedlander, and
that claim dating back as far as the fall of
1866, it ia more than probable he would
have sought its collection long ago. Ac-
cOrding to his own story, he slept for three
| years on this claim of his. only awakening at
intervals to urge it whenever Friedlander
sent for his monthly rent The claim was
not allowed by Friedlander, and Levi paid
the rent. Among business men, merchants,
it is not usual l believe, to pay without ex-
acting at least some evidence to show that
there exists no counter-claim. The presump-
ton is natural when payment is made,
that the party who receives is not indebted
to the one who gives. And this presllmp-
of the sum of $3.50, and the party paying has
a claim for four or five times that amount
against the one to whom he pays.
8. Levi admits that the words mot
negotiable" written across the face of the
notes, are in the handwriting Of his
book keeper; yet he can not state at what
place these words were written by the book
keeper. The bosk-keeper says the notes
were left with him in the absence Of Levi;
and le wrote the words and gave Levi the
| notes and lease. Levi swears he never
| brought the notes and lease to Friedlanders
| Office; that he went there, talked over the
| matter with Friedlander, and finally signed
| the notes and lease which were lying on
| Friedlander's desk. How did the notes and
lease get there?
| 4. Levi stands badly on the record. About
two weeks ago the present case was called
for trial, and he presented motion for a
continuance on the ground of the absence of
| material witness in his favOr-the man
Hetza. This motion was supported, as the
law requires, by Lewis sworn statement,
| that he was not aware Of the fact that his
witness intended to depart the city: that he
| could not have prevented it, etc. Now Het-
| eel, in his testimony, taken by commission
| after the continuance was obtained, says,
"When left the city told Mr.. Levi that
| would let him know where l was" or words
| to that effect l specially called Lewis at
! tention to this sworn statement of his friend
Hetzel, and asked him if it were true that
Hetzel had told him when he left the city that
| he would communicate his whereabouts.
Levi answered that the statement of Hetzel
was quite correct. If it be true, as admit
ted by Levi, that when Hetzel left the city
he informed Levi that he would let him
know where he was, then the affidavit
| made by Levi for a continuance was ta-
| grant falsehood. He imposed upon the court,
and obtained delay upon false state
ment. 1t is true that when he saw he was
| caught in this trap, Levi attempted to
screen himself from the falsehoOd which
| was patent, but it is evident his explanation
only makes the matter worsc-being be.
sides, clearly an after-thought. He admits
Hetzel did say so to him, but that it was
conditional, IF leave the city" etc.
Even this would not be enough to extricate
him. He swore for the continuance that he
| was not aware Hetzel intended to leave the
| city-which he could not have done with a
| clear conscience, when Hetzel had already
| evidently spoken about leaving, and had
| said, "If l leave" eto. But this plank Is
| not enough for Levi. Hetzel says positively
when fleft I told Levi etc., and when