Stafford v. Cranor Lumber Co. , 6 Teiss. 392 ( 1909 )

ESTOPINAL, J.

Plaintiff sued the defendant to recover of him the sum of Four Hundred and Forty-nins Dollars and Ninety-two Cents ($449.92), averring in his petition that he is the holder of two drafts, each dated July 25, 1908, payable at fifteen .and twenty days’ sight, respectively, drawn on the defendant, the Cranor Lumber Compány, to his (plaintiff’s) order, by J. B. Bateman, Jr., for the sum of Two Hundred and Twenty Four Dollars and Ninety-six Cents ($224.96), each, and that the said drafts were accepted by the said Cranor Lumber Company, but not paid by it at maturity or since.

June 21, 1909.

Defendant company tendered the general issue coupled with a depial of its liability for want of consideration.

The defendant made no appearance in the lower court. Plaintiff offered proper and sufficient proof, and judgment was rendered in his favor.

Counsel for plaintiff has correctly stated the law to be that want of, or failure of consideration, cannot be urged as a defense in a suit brought by the payee of a draft against the acceptor.

This defense is impossible.

Cyc., Vol. 7, p. 779; 5 A. 474; 13 La. 274.

The appellee has asked for damages for a frivolous appeal, and we think they should be awarded.

The appellant has not filed any brief in this case, nor has he called our attention to any error in the judgment, and we have been unable to see any.

A letter is found in the record written by defendant, in which the debt is acknowledged and a promise to pay made if suit is not instituted. This shows clearly a play for delay.

It is therefore ordered and adjudged that fché judgment of the District Court be affirmed with Forty Dollars ($40) damages for a frivolous appeal, and for all costs.