McCan v. Fulkerson, McLaurin & Co. , 26 La. Ann. 344 ( 1874 )

Ludeling, C.vJ.

The plaintiff sued the defendants on the following-note :,

$2531 73-100. New Orleans, April 18,1867.

Sixty days after date we promise to pay to the order of D. C. McCan twenty-five hundred and thirty-one dollars and seventy-three cents, for value received, with interest at the rate of eight per cent, per* annum after maturity until paid.

FULKERSON, McLAURIN & CO.

The petitioner demanded judgment against the defendants insólidof and that five hundred and ten shares of the stock of said company, pledged by H. S. Fulkerson to pay certain of his creditors, including petitioner, be seized and sold to satisfy his demand.

The following is a copy of the alleged pledge alluded to:

New Orleans, May 25, 1867.

The undersigned, in behalf of the New Orleans Manufacturing and Building Company, acknowledge receipt from Mr. H. S. Fulkerson of five hundred and ten shares of his stock of the company, which are to he disposed of towards paying the liabilities that may exist against the company, and for which Mr. Fulkerson is personally responsible. Should there be an excess of funds or stock, the same to become the property of Mr. Fulkerson and be returned to him. Mr. Fulkerson desires the following claims to be liquidated by the sale of his stock r Amount due the New Orleans Manufacturing and Building Company, $2000; amount due J. L. Lobdell, $2250 92; amount due Charles Donnelly, $1757 73; amount due D. C. McCan, $2631 73, and such other small bills, as yet unascertained, as may be approved by Mr. Fulkerson, supposed not to exceed $1000.

For the New Orleans Manufacturing and Building Company:

(Signed) LOUIS SCHNEIDER,

J. H. BLAFFER, Treasurer.

Witness: Ed. Schnu&ans.

Accepted: H. S. Fulkerson.

The New Orleans Manufacturing and Building Company filed a-general denial, and also pleaded novation of the debt originally due to the plaintiff..

. There was judgment against Fulkerson, who made no defense, and: against the New Orleans Manufacturing and Building Company. The other members of the firm of Fulkerson, McLaurin & Co. were discharged under the bankrupt law. The company alone has appealed.

We think the plea of novation is established. The plaintiff had an> account against the New Orleans Manufacturing and Building Company, or the Delachaise Building Company. For the sake of argument we will consider it to have been against the New OrleansManufacturing- and Building Company. For this account the note sued upon was given and the account was receipted in full, and the debtors Fulkerson, Mc-Laurin & Co. were substituted for the old debtor. See 2 N. S. 144; 6 N. S. 637; 2 La. Ill; 16 La. 140; 4 An. 543; 14 An. 54.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment against the plaintiff and in favor of the defendant rejecting the demands, with costs in both courts.

Rehearing refused.