New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-03-27
VOLUME VINO. 299.

| changed. 1t is lesseDed, but had the same
origin. l am, therefore, forced to regard ii
as modification of the same debt, because
there was no new consideration or cause OF
debt, no previous obligors released, and nc
security changed. Some of the original
notes were gwen up, and the remaining
one would have been had the payee and
and plaintiff been possessed of it at the
time.
The evidence of Mr. Gardner goes to
show that the defendants being indebted in
a sum which they said they could not pay,
"Offered to compromise and pay thirty cents
on the dollar" that there was an under
etanding when the compromise was made
that the new series of notes should be
paid promptly at maturity. These were
substituted purely and simply for the old
notes, on the condition of prompt payment
at maturity. There was nothing said about
falling back on the original notes in the
event of the failure to pay the new series.
The new ones were never paid, and are Of
| tered in evidence. Mr. Gardner had no
agreement with Mr.. Levasseur, but consid-
cred that he had the right to fall back upon
the old notes if he (Levasseur) did not carry
out the compromise in good faith. He
(Gardner) considered it compromise, con.
| ditioned upon the payment Of the seven
notes.
George A. Peete, sworn, stated that he
signed, and heard the conversation between
Messrs Gardner and Levasseur. He took
the compromise to be a conditional one.
He was and is bOOk-keeper of Gardner g.
Co., and made no changes in his book en-
tries relating to the Indebtedness of Levas-
seur d Co.; says it is customary when an
account is lost to enter it up in the books to
account of profit and loss.
The whole topic of nOvation is so peculiar
TO the civil law and sal6Oyn Occupioa anv
space in English, that we are forced to re-
fer to POthier on Obligations for an elabO-
rate and exhaustive view of the subject.
There we learn that it is "a transaction
whereby debtor is discharged from his
liability to his original creditor by contract
ing new obligation in favor of a new
creditor, by the order of his original cred
itor." See part 3. ch. g art. l.
Our code goes farther, as has been shown
by articles 2lS5, 2lS6, 2lS7, 2l89 (section one)
and 2l90, already quoted. Under the defni.
ton given by POthier, no very serious diff
culties could arise as to what does cOnsti-
tute novatiOn, whereas under the code it
is sometimes very perplexing to arrive at
any satisfactory conclusion. Such is the
case here.
In the case of Pierre Aillet VS.. James c.
Woods, "a An. p 1873. it was ''shOwn that
the note sued on was given, as alleged by
plaintiff, in rene val OF one having a vend-
Or's privilege on the land described" The
defense set up was the general Issue, nova
tiOn and prescription, aud the court said,
"We do not perceive any force in the pleas
OF novation and prescription" The lower
court had rendered a judgment in favor of
plaintiff with recognition of his vendors
privilege on the property described, and the
Supreme Court held that the vendors privi-
lege was not necessarily lost as to the de-
fendant himself. The principal debt seems
to have been kept alive. and as no other
creditor is before US, We do not see clearly
what practical interest the defendant has
in the only question which he discusses with
such earnestness, namely: Whether the
Judgment was correct in according vend
0rs privilege on the land. The doctrine
there decided, it seems to me, goes much
farther than l am required to go in this |
case. Here new notes were taken, but taken,
as two witnesses declare, conditioned upon
their punctual payment In that case new |
note was taken in lieu of one secured by |
mortgage. The plea of novation was over
ruled and the vendors privilege de- |
clared to exist guOad the debtor to |
secure its payment There is, how. |
ever, one difference in the two cases |
which it is necessary to notice. In that |
case suit was brought on the new note |
given, whereas in this it was instituted to |
recover on the original notes, and the new |
tanned that the plaintiffs right of action
was upon the new notes and not upon the |
old. do not think the argument good, be- |
cause if sustained would tend to subvert
certain general and fundamental principles
to which the courts must adhere with in
flexible tenacity. The taking of these new
notes was evidently superiDduced by de-
representations that they could
not pay the full amount of the old
notes and upon the assurance that they
would pay the new as stipulated. The tacit
agreement then was that plaintiffs would
take thirty-Qne per cent of the debt, pro.
vided it were paid.
Even this was not paid, nor indeed any
part of it. To hold then that plaintiffs are
bound bv their agreement, based alone on
of payment when defendants
lave not complied with it, would be unfair
and consequently unjust 1t were equiva.
ent to declaring that contract broken
and regarded by one party is neverthe-
ess binding on the other. This is not rea-
.onable and, therefore, can not be law.
The inducement or consideration offered to
AXE the new notes was the assurance that
hey would be paid at maturity, and the
wO witnesses state that that was the only
condition on which they were taken. I
hink that inasmHch as the defendants have
ntirely failed to comply with the condi-
ion upon which the amount of indebted
less was reduced, the plaintiffs have the
light to sue for the entirety of the original
and that they are entitled to
Judgment and perpetuation of attachment.
Defendants unconventional demand is there.
ore rejected