Mouton v. Thibodeaux , 16 La. 131 ( 1840 )

Marlin, J.,

delivered the opinion of the court.

The plaintiff, as agent for Don Louis Thibodeaux, claims a a sum of money, which he alleges he paid for his'principal, who was the surety of the defendant, Pierre Paul Thibodeaux, and on his account.

A suit had been brought on a note signed by the principal and the defendant, on the dismissal of which, the creditor or payee acknowledged he had received from the defendant, by the hands of A. Mouton, seven hundred and seventy-nine dollars and ten cents, in full satisfaction of the note.

The plaintiff contended, this was evidence of a payment made by his principal for the present defendant. There was judgmenltagainst the defendant, for seven hundred and thirty-two dollars and twenty-five cents, with interest, at ten per cent, per annum, from March, 1831; this being the amount of the above note, with interest, from the date of its maturity.

plaintiff fails to make out his must^b^n’on-suited. go wliere it did not appear ül?-t tho Persof suing as agent, msreally such; debt due and tiff, he was non-suited.

It is in evidence, that a former note had been given by the same parlies, in which they were bound in solido, for a sum, upwards of seven hundred dollars, due by the defendant to the payee of the note above stated; and the last mentioned note was believed, by the witness, to have been given in renewal of the former one, but of this he is not sure.

It appears to us the court erred. The payment made by Mouton, is stated to have been effected for the defendant, in the singular. But there were two defendants, and nothing shows that Mouton was, at the time, the agent of the person for whom he has brought the present suit. We must, therefore, consider the payment as made for both of the defendants. 3 r J , The plaintiff has, in our opinion, not made out his case.

Itis, therefore, ordered, adjudged and decreed, thatthejudgment of the District Court be annulled, avoided and reversed; and that there be judgment of non-suit against the plaintiff, with costs in both courts.