Blanc v. Hertzog

Howell, J. Plaintiff, as syndic of B. Toledano & Taylor, sues -the •defendant, F. Hertzog, on a note made by Hertzog Brothers, of which firm he was a member, and Mrs. Amire Hertzog on a draft drawn by her in favor of Hertzog Brothers on Ar. Miltenberger, but not accepted, for tbe amount due on tbe note of said Hertzog Brothers And for which it was pledged as collateral security. She excepted to bringing suit in the same action, the obligations, if any, being exclusive And independent and there being no privity of contract between tbe defendants. The exception was overruled and each defendant filed separate defenses. That of Frederick Hertzog was a general denial and tbe prescription of five years; and that of Mrs. Amire Hertzog was, in substance, that she gave tbe order to Hertzog Brothers solely •for their benefit and accommodation, they being lier sons, and not as commercial or negotiable paper, to be paid on the sale of her then .growing crop, which was destroyed by the Confederate army without .any fault on her part, and that she never recovered any value for said •order. Judgment was rendered in favor of plaintiff and defendants Appealed, *200 As to Frederick Hertzog the case is fully made out. Prescription may be considered suspended as to him, while the creditor held tlw collateral pledged by him. The case is different, however, in regard to Mrs. Hertzog. The order given by her was not negotiable or commercial paper and was without consideration. The pledgee, therefore, acquired no greater right than the payees had, and they could not •' have recovered on it. And, besides, it is not shown to have been 'presented for payment and notice of non-payment given to the drawer. We think she is not liable on the order, and that it is unnecessary to inquire into the regularity of the action. It is therefore ordered that the judgment, as to Mrs. Amire Hertzog, be reversed, and that there be judgment in her favor against the plaintiff, and that the judgment against Frederick Hertzog be affirmed, with the costs of appeal.