Heath v. Locke ( 1841 )

Marti», J.

delivered the opinion of the court.

The defendants being sued on their promissory note and an agreement in writing to pay ten per cent, interest thereon, did not deny their signa- [69] ture, but the plaintiff’s right to sue; and pleaded several matters in defence of which they do not appear to have given any evidence. There is, however, a bill of exception taken by them to the opinion of the court, rejecting parol evidence of the failure of the consideration of the written agreement above stated, which is in the following words :

“ New Orleans, 4th April, 1840.

“ In consideration of Messrs. S. Heath & Oo., renewing our note for $3056 20, due this day, we bind ourselves to pay them at the rate of ten per cent, per annum interest on the renewed note from maturity till final payment of the whole debt.

(Signed) S. Loose <& Oo.”

This agreement bears intrinsic evidence that the consideration had passed at its date, and therefore could not fail. The note sued on bears even date with the agreement, and is evidently the one given in renewal of the former, which was for five hundred dollars more ; that sum being, as is stated in the answer, the amount which was to be deducted on the renewal.

The petition alleges that the plaintiff traded under the firm of S. Heath & Oo., and the defendants dealt with him as such. This was not denied in any manner; there was consequently no necessity to prove it. The plaintiff had clearly the right to sue Mm on this contract, and he correctly did so in his own name; adding thereto the style of the firm under which he dealt with the defendant.

It does not appear that the court erred. No part of the defence set up is sustained by any evidence.

It is therefore ordered, adjudged and decreed, that the judgment of the commercial court be affirmed, with costs and five per cent, damages.