No. 4113 Precedential Remanded Processed

National American Bank v. Davis

Louisiana Court of Appeal, First Circuit · Filed August 3, 1970 · 239 So. 2d 493

Also decided on this docket: La. Ct. App. 1st Cir., November 10, 1972 268 So. 2d 681; La. Ct. App. 1st Cir., February 16, 1932 139 So. 539; La. Ct. App. 1st Cir., December 30, 1955 84 So. 2d 634

Cited by

Mobley v. Harrel 571 So. 2d 662 La. Ct. App. 2d Cir. 1990
Fly v. Hand 376 So. 2d 1016 La. Ct. App. 1st Cir. 1979

Authorities cited

Identified automatically; this list may not be exhaustive.

Belknap Hardware & Mfg. Co. v. Hearn 179 La. 909

Opinion text

REDMANN, Judge. Emile G. Coci appeals from a judgment against himself in this suit on a promissory note. Coci’s original answer denied plaintiff’s allegation it was the “holder and owner for valuable consideration”. A supplemental and amended answer was allowed immediately prior to trial because Coci had newly-employed counsel; plaintiff’s entitlement to a continuance was suggested by the trial judge, see LSA-C.C.P. art. 1154, but declined by plaintiff. The amended answer asserted the note was not supported by consideration. Because the note recited “for value received”, the trial court excluded testimony sought to be elicited relative to the question of consideration, under the parol evidence exclusionary rule. LSA-C.C. art. 2276; see also C.C. art. 2238. The exclusion of parol was erroneous. “ * * * Article 2276 of the Civil Code and the authorities cited by plaintiff holding that written contracts are not subject to modification by parol evidence are inapplicable to the issue presented in this case. Negotiable paper is governed by laws peculiar to itself. The want, failure, or illegality of consideration may be established by parol testimony between the parties to a note. * * * ” (Citation of authorities omitted.) Belknap Hdw. & Mfg. Co. v. Hearn, 179 La. 909 , 155 So. 396, 397 (1934). LSA-R.S. 7:28 (N.I.L. § 28) provides “Absence or failure of consideration is a matter of defence as against any person not a holder in due course; * * * ” and *494 plaintiff is the payee here, not a holder in due course. The circumstance that Coci’s code-fendant, a co-maker, admitted consideration is not determinative of Coci’s plea. The judgment appealed from is reversed and this matter remanded. Costs will await the final outcome. Reversed and remanded.