J.J. Clarke Company v. Estrade , 163 So. 420 ( 1935 )

^* Rehearing denied Nov. 4, 1935. Plaintiff, as the owner and holder of a certain promissory note, filed this suit against defendant, as the indorser. The note in question is dated at New Orleans, July 16, 1929, and recites that on the 16th day of each month, after date, the maker promises to pay to the order of himself the sum of $12, until he shall have paid the sum of $235, with interest at the rate of 8 per cent. per annum from date. The note is paraphed for identification with an act of mortgage passed July 16, 1929, before Martin H. Manion, notary public. On November 27, 1929, defendant, who was the owner and holder of said note, transferred it to plaintiff for a consideration of $199, which appears to have been the balance due on the note at that time. Of this amount, $100 was applied on an open account due plaintiff by defendant, and the balance of $99 plaintiff paid defendant by check. On November 27, 1929, the date of this transaction, the note was in default and the remaining installments had matured under the terms of the chattel mortgage. The first installment was paid on August 17, 1929, no installment was paid for September, and on October 19, 1929, two installments were paid. Therefore, on November 27th, the installment for November due November 16th was due and unpaid and the note was in default. Plaintiff had previously foreclosed under the chattel mortgage, realizing the sum of $50.60 from the sale of the mortgaged property. Defendant did not indorse the note at the time it was made, but placed his indorsement thereon on November 27, 1929, at the time the note was transferred to plaintiff and while the same was past due and in default.

Defendant resists payment, claiming that he was entitled to notice of dishonor and notice of the foreclosure under the chattel mortgage.

From a judgment in favor of plaintiff. defendant has appealed.

The questions involved were passed upon by this court when this case came before us on the exception of no cause of action, and the reasoning set forth there is applicable here. J. J. Clarke Co., Inc., v. Ford et al., 145 So. 557.

For the reasons assigned in that case, the judgment appealed from is affirmed.

Affirmed.