
    (57 South. 999.)
    No. 18,701.
    BOUDREAUX v. FIRST NAT. BANK OF JEANERETTE et al.
    (Feb. 26, 1912.
    Rehearing Denied March 25, 1912.)
    
      (Syllabus by the Court.)
    
    Appeal and Error (§ 1011*) — Review-Questions op Fact — Conflicting Evidence.
    Where the evidence is conflicting, the findings of the trial judge on issues of fact are entitled to great weight, and will not be disturbed unless clearly against the preponderance of the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]
    Appeal from Nineteenth Judicial District ■Court, Parish of Iberia; James Simon, Judge.
    Action by E. A. Boudreaux against the First National Bank of Jeanerette and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Foster, Milling, Brian & Saal, for appellant.' Burke & Burke and Y. J. Smith, for appellee First Nat. Bank of Jeanerette. Em-met Alpha, for appellee MeGowen.
   LAND, J.

Plaintiff, a retail merchant of the village of Sorrel, parish of St. Mary, sued the First National Bank of Jeanerette, of the parish of Iberia, to recover $3,000 damages, alleged to have been occasioned by the wrongful protest, at the instance of defendant bank, of plaintiff’s note for $104.50 executed in favor of the Fairbanks Company, and being one of a series of notes given for the credit portion of the purchase price of a gasoline engine. All of these notes were made payable on their face at the Bank of Jeanerette, Jeanerette, La. The petition alleges that the first note of the .series was promptly paid; that petitioner deposited money in the Bank of Jeanerette to meet the note maturing on December 10, 1909, and instructed the cashier of that bank to pay the note when it was presented for payment; that the Fairbanks Company placed said note in the hands of the Iíibernia Bank for collection, and that bank sent the note to the First National Bank of Jeanerette, with instructions to collect; that on December 10, 1909, said bank, instead of presenting the note at the place of payment, designated on its face, notified petitioner by telephone that the First National Bank held said note for collection; that petitioner informed the cashier of said bank that the note was payable at the Bank of Jeanerette, that the money was there deposited to pay said note, and that if the note was presented at the place of payment it would be paid ; that the First National Bank disregarded the instructions of petitioner, refused to present the note to the Bank of Jeanerette, and without right or excuse protested the same, and returned it to New Orleans, notifying the holder thereof that payment had been refused.

Defendant excepted to the petition on the ground that it was hot its duty to present the note for payment at the place indicated on the face thereof, but that such was the duty of the notary public to whom the note was handed for protest, and that, if any cause of action exists; it is against said officer. Reserving the benefit of this exception, the defendant, after pleading the general issue, admitted that on December 7, 1909, it held the note aforesaid for collection, and so informed the plaintiff by telephone, but averred that thereupon the plaintiff instructed the defendant to return the note, and, upon being informed that the note was subject to protest, plaintiff told the defendant to protest it.

Plaintiff filed an amended petition making the notary public a party to the suit, and charging that both defendants wrongfully and maliciously caused the note to be protested, and prayed for judgment against them in solido for $3,000 damages. Later, the plaintiff again amended his petition, and prayed for judgment for $6,000 damages.

Tjiere was judgment in favor of the defendants, and the plaintiff has appealed.

The crux of the case is the issue of fact as to the instructions given by plaintiff to the defendant banlr on December 7, 1909. The judge a quo decided this issue in favor of the defendants. The judge found that the cashier and collecting clerk of defendant bank called up plaintiff over the telephone, and, in reply, he instructed them to return the note, and, if subject to protest, to protest it, and that no other instructions were given. Plaintiff and appellant contends that this finding is contrary to the evidence. We have carefully examined the evidence on this issue and are not prepared to say that the judgment below is contrary to the evidence. It is certainly sustained by the direct and positive testimony of the collecting clerk and cashier of the defendant bank. The first note held by the Fairbanks Company was collected through the defendant bank, although payable on its face at the Bank of Jeanerette. The second note due December 7, 1909, was also sent to the defendant bank for collection. The collecting clerk testified from his records that timely notice was mailed to the plaintiff that the bank held the note for collection and that it would fall due on December 7, 1909.

Not hearing from the plaintiff, the bank on December 7, 1909, called him up over the ’phone, and he conversed with both the collecting clerk and the cashier about the note due on that day. The substance of their testimony as to what was said has already been stated. The gist of plaintiff’s testimony is that he ’phoned the cashier that the note was payable at the Bank of Jeanerette, and that if he would present it to the Bank of Jeanerette it would be paid; that the cashier replied that the Bank of | Jeanerette did not hold the note for collection, and, if it was not paid, it would be-protested. Of course, the conflict between the statements of the two witnesses for the-bank and the plaintiff cannot be reconciled. Plaintiff undertook to corroborate his testimony by the witnesses Dupan and Verret, who testified that they heard a conversation-in plaintiff’s store over the ’phone between the plaintiff and some other person. Du-pan’s version is as follows:

“I heard Mr. Boudreaux say through the-’phone to take the note to the Jeanerette Bank and it would be paid, and afterwards I heard him say, ‘Don’t protest my note;’ instead of protesting the note to send it back to the place where it came from and they would send it back to the proper place and it would be paid.”'

On cross-examination, this witness admitted that he moved to Sorrel, where plaintiff’s store was located not earlier than December 15, 1909, that he met plaintiff a few days later, and heard the conversation! over the ’phone about 25 days more or less-after he got there. Of course, this witness-could not have heard the conversation of December 7, 1909. The witness Verret located the time of the ’phone conversation as between the 1st and 10th of December, 1909,. and discredits himself at the start by stating that the witness Dupan was presentVerret’s version is as follows:

“I don’t want my note protested. Why don’t you send it in the proper place for collection?”'

That’s all he heard. On cross-examination Verret said:

“I heard him say to send it back to the-proper place where it came from, but I could not swear to it; it was something like that,, but I did not pay much attention to it; but when I heard about the note’s protest, I said; to myself he must be in trouble. Q. But you-heard him say to send it back to the proper place? A. Yes, sir; the proper place to be collected. Q. And you also heard Mm say to> send it back to the place wheré it came from?' A. Yes, sir. Q. You are sure that he used the-language, ‘Send it back where it came from,’' whatever else you may have heard? A. Yes,, sir. Q. You remember having heard him say that? A. Yes.”

Sucli vague and inconsistent testimony is of little or no probative value. It is very probable that tbe easbier of tbe defendant bank would bave presented tbe note to tbe Bank of Jeanerette if be bad been instructed to do so, or bad been advised that tbe plaintiff bad made any provision there for its payment. It would bave been much less trouble to collect from a bank in tbe same town than from tbe plaintiff several miles away. Tbe easbier bad no motive to protest tbe note save as a matter of business duty.

It appears that tbe plaintiff bad been fretted at tbe insistence of tbe defendant bank in tbe prompt collection of the first note, and bad made a verbal arrangement with tbe easbier of tbe Bank of Jeanerette for tbe payment of tbe note due December 7, 1909. Plaintiff did not deposit money to meet tbe note as alleged in bis petition, and as a matter of fact bis account was overdrawn. Tbe note, however, would have been paid, if it had been presented to tbe Jeanerette Bank on December 7, 1909. If plaintiff bad intended to pay tbe note on December 7, 1909, be would bave instructed tbe defendant bank to present the note for payment to tbe Bank of Jeanerette. This would have ended tbe matter, and there would bave been no occasion for any talk about protest, or returning tbe note to tbe holder. On December 8, 1909, the next day after the protest, tbe plaintiff wrote tbe Fairbanks Company, omitting caption, as follows:

“When I signed those notes for that engine which I bought through Mr. W. F. Taylor, he told me all the notes would bear the same interest as the first one.
"“I am notified from the First National Bank of Jeanerette that the interest is over $5.00. I do not see why you should charge me more interest than on the first note, as each note should bear its own interest.
“All those notes are made payable through the Bank of Jeanerette, and I will ask you to send them there for collection,” etc.

Tbe note due December 7, 1909, was paid on January 11, 1910, less protest fees and interest after maturity. It would seem, from tbe letter quoted above, that tbe plaintiff objected to tbe interest charge on tbe1 note, and objected to paying tbe note unless, sent to tbe Bank of Jeanerette. These objections are circumstances that increase tbe improbability that plaintiff instructed the easbier of defendant bank to present the' note for payment to tbe Bank of Jeanerette, and that the cashier refused to do so without any reasonable motive.

Judgment affirmed.  