Winn v. Perryman , 1935 La. App. LEXIS 252 ( 1935 )

^* Rehearing denied June 4, 1935. This is a second suit brought by plaintiff against W.D. Perryman, E.F. Perryman, E.H. Batton, and T.J. Hardman, all residents of Webster parish, as indorsers on a promissory note. In the first suit, which was appealed to this court, we reversed the judgment of the lower court in so far as it rejected the demand of the indorsers, and dismissed the action as to them as of nonsuit. Winn v. Batton et al. (La.App.) 152 So. 349.

The defense in that case, as it is in this, was want of notice of dishonor. The first suit was filed without any previous notice; plaintiff contending that the service on defendants of citation and a copy of the petition containing the necessary averments itself constituted notice of dishonor. While recognizing the soundness of this contention, we held that the notice must be given prior to the institution of suit, and alleged upon in the petition, to state a cause of action. That notice accomplished by the service, while valid as such, came too late to save the action.

The present suit contains the allegation that timely and legal notice of dishonor was given the indorsers by means of the service in the former suit. The answer sets up that this did not constitute a legal notice, and that, no other being given, defendants are discharged.

In the lower court there was judgment for plaintiff, from which defendants have appealed.

While the objection of counsel for defendants that our expressions in the former opinion went further than necessary for a decision of the question before us may be well founded, those expressions, as quoted below, are correct, pertinent to the present issue, and decisive of it:

"There is no sacramental form for the giving of notice of dishonor of a negotiable instrument to those secondarily responsible thereon (sections 89, 96, Negotiable Instrument Law). It may be done by telephone, personal conversation, or by writing. Notice is sufficient if it imparts to the indorsers the identity of the instrument dishonored and the fact of dishonor. The law requires that the notice be given not later than during the day following the dishonor of the instrument (section 103, Act No. 64 of 1904). The purpose of such notice, in addition to holding those secondarily liable thereon, is to afford those thus bound for its payment an opportunity to discharge it before suit is filed to enforce payment thereof, with consequent costs.

"The petition in this case carefully described the note sued on. It is alleged therein that payment thereof had been demanded of defendants, without success, and that the whole of the note remained unpaid. It seems to us that the service of petition herein the day it was filed would operate as a notice of dishonor of the note, of the most impressive character; and especially does this appear so when we take into consideration the fact that the law requires no particular form for such a notice."

For the reasons assigned, the judgment appealed from is affirmed.

DREW, J., recused.