
    HEATH vs. LOCKE ET AL.
    APPEAL PROM THE COMMERCIAL COURT OF NEW ORLEANS.
    Where an agreement bears intrinsic evidence that the consideration had passed at ° # v 4 1 its date, no evidence touching an averment of failure of consideration will be received.
    This is an action by Robert Heath, who alleges that he carries on mercantile business under the firm of S. Heath & Co., and that the defendants are indebted to him in the sum of $2560 49, with costs of protest and interest; being for the amount of their promissory note, executed by Samuel Locke & Co., payable to the order of S. Heath & Co., sixty days after the 4th April, 1840.
    The plaintiff further states that by a written agreement of even date with said note, signed by S. Locke & Co., they bound themselves to pay ten per cent, interest on the amount of the note from maturity until paid.
    The defendants pleaded a general denial; they admitted however their signatures to the instrument sued on, averring a failure of consideration of the agreement, &c.
    It appeared that in consideration of reducing a former note from $3056 20, to the sum of $2560 49, and paying ten per cent, interest, the plaintiff consented to renew the note for the latter sum sixty days longer.
    The defendants offered parol evidence to prove a failure of .consideration, which was objected to, and excluded by the court.
    There was judgment for the plaintiff and the defendants appealed.
    
      Peyton Smith, for the plaintiff.
    
      Durell, for the defendants.
   Martin, J.

delivered the opinion of the court.

The defendants being sued on their promissory note and an agreement in writing to pay ten per cent, interest thereon, did not deny their signature,'but the plaintiff’s right to sue; and pleaded several matters in defence of which they do not appear to have given apy evidence. There is, however, a hill of exception taken by them to the opinion of the court, rejecting parol evidence of the failure of the consideration of the written agreement above stated, which is in the following words :

Where an agreement bears intrinsic evidence that the consideration had passed at its date,no evidence touching an averment of failure of consideration will be received.

“ New Orleans, 4th April, 1840.

“ In consideration of Messrs. S. Heath & Co., renewing our note for $3056 20, due this day, we hind ourselves to pay them at the rate of ten per cent, per annum interest on the renewed note from maturity till final payment of the whole debt.

Signed, S. LOCKE & CO.”

This agreement bears intrinsic evidence that the consideration had parsed at its date, and therefore could- not fail. The note sued on bears even date with the agreement, and is evidently the one given in renewal of the former, which was for five hundred dollars more; that sum being, as is stated in the answer, the amount which was to be deducted on the renewal.

The petition alleges that the plaintiff traded under the firm of S. Heath & Co., and the defendants dealt wdth him as such. This was not denied in any manner ; there was consequently no necessity to prove it. The plaintiff had clearly the right to sue him on this contract, and he correctly did so in his own name ; adding thereto the style of the firm under which. he dealt with the defendant.

It does not appear that the court erred. No part of the de-fence set up is sustained by any evidence.

It is therefore ordered, adjudged and decreed that the judgment of the Commercial Court be affirmed with costs and five per cent, damages.  