O'Banion v. Willis
Also decided on this docket: La. Ct. App. 1st Cir., July 5, 1962 143 So. 2d 757; La., September 15, 1869 21 La. Ann. 618; La. Ct. App. 4th Cir., July 12, 1962 144 So. 2d 625
O'Banion v. Willis, 129 So. 440 (La. Ct. App. 1st Cir. 1930).
Cited by
- Boyce Machinery Corp. v. Carpet Inn, Inc. 277 So. 2d 496 La. Ct. App. 1st Cir. 1973
- Fireman's Fund Insurance v. Richard 209 So. 2d 95 La. Ct. App. 1st Cir. 1968
- Harper v. Home Indemnity Company 140 So. 2d 653 La. Ct. App. 2d Cir. 1962
- Merchants' & Farmers' Bank & Trust Co. v. Johnson 142 So. 158 La. Ct. App. 1st Cir. 1932
Authorities cited
Identified automatically; this list may not be exhaustive.
- Dubuch v. Goudchaux 6 La. Ann. 780
- Huie v. Bailey 16 La. 213
- Purdy v. Forstall 45 La. Ann. 814
- John M. Parker & Co. v. Guillot 118 La. 223
Opinion text
ELLIOTT, J. (dissenting). I think it a proper deduction, from what J. L. O’Banion says, that, when J. E. Willis paid him $30, promising at the same time to pay the balance due on the note within thirty or sixty days, Willis understood from plaintiff that plaintiff would in consideration of the payment wait on him for thirty or sixty days for the balance, that such was the tacit understanding between them. But I think the delay which it was understood the maker was to have amounted to nothing more than forbearance; that the plaintiff could have sued if he had been so disposed, and, if the indorsers had paid the note, they could have also proceeded against *642 the maker to compel him to recoup them for the amount thus paid on his account. The $30 was paid as a credit on the note; there was no actual consideration for an extension. Clause 6, sec. 120, Act No. 64 of 1904, which provides: “By any agreement binding upon the holder to extend the time of payment,” is the law of the present case, and not Revised Civil, Code, article 3063, on the subject of suretyship. The Act No. 64 of 1904 is the common law or general mercantile law on the subject of bills and notes; and under which an agreement to extend the time of payment is not binding on a' holder, unless a consideration is received for the extension. The authorities on which the majority of the court depend are old cases and in conflict with cases also old and also with later jurisprudence on the subject. In Dubuch v. Goudchaux, 6 La. Ann. 780 , jurisprudence on the subject was reviewed, conflicting authorities overruled, and the principles announced in the cases Huie v. Bailey, 16 La. 213 , 35 Am. Dec. 214 , and Frazier Dick, 5 Rob. 249 , were reaffirmed. There are two cases, both reported in the first annual, which I think must be looked on as superseded by the Dubuch case. The Dubuch case is in harmony with McLemore v. Powell, 12 Wheat. 554 , 6 L. Ed. 726 , and Purdy v. Forstall, 45 La. Ann. 814, 13 , So. 95, and the latter case, Parker & Co. v. Guillot, 118 La. 223 , 42 So. 782 , in all of which a consideration for an extension was deemed necessary. I find in R. C. L., subject “Bills and Notes,” that such is the rule in construing the law quoted, Act No. 64 of 1904, in the other states. The indorsers, having enabled the maker to get credit, should not be discharged from their liability as indorsers unless the holder of the note does some act which has precluded him and has also precluded the indorsers from suing the maker for a specified time, and I do not think that such a preclusion exists without a consideration for same having been received. The judgment appealed from is in my opinion correct, and should be affirmed. I therefore respectfully dissent.