Kinney v. Crane ( 1841 )

Morphy, J.

delivered the opinion of the court.

This is a suit on an open account. The only item about which there is any dispute is a charge made against the defendant for the price of a gig sold by him to one Dr. Mackie for account of the plaintiff, a coach-maker, residing in the city of Newark, New Jersey. The sale was made on the 28th of July, 1835, at a credit of six months, and defendant received Mackie’s note to his own order, which when due was protested for non-payment. It appears that although the gig remained in the vendee’s possession after the maturity of the note, the defendant failed to enforce on it his lien as vendor; and has since used no legal exertions whatever to secure the payment of the price for his principal. Admitting that at the time of the sale ho was justified under the evidence, in selling to Mackie without requiring an indorsor, we fully concur in opinion with the inferior court that the defendant by thus keeping the note for years in his possession without using common diligence to collect it, has made the debt his own and was properly charged with its amount. La. Code, art. 2972 ; Story on Agency, p. 189.

The judgment of the district court is therefore affirmed, with costs.