
    NO. 8315
    COURT OF APPEAL PARISH OF ORLEANS
    AUTOMOBILE FINANCE & SECURITIES COMPANY VERSUS JAVIER FIGUEROA M. AND ALLEN SALES COMPANY.
    
      
    
   Dinkelapiel; J

Plaintiff institutes this suit against the defendants alleging that the Allen Sales Company is a legal copartnership oomposed of Theodore Grsnk and F. J. Weinberger, and that they are indebted to plaintiff in the full sum of Fifteen Hundred end Twenty Five and 04/100 (§1525.04) Dollars, with interest at the rate of eight per cent from maturity until paid, together with attorney's fees of fifteen per cent on said principal and interest; and alleging further that plaintiff is the holder and owner for a valuable consideration and bofore maturity of eleven promisory notos meds and subscribed by Javier Figueroa M. and endorsed by the Allen Sales Company; describing said notes, under sn aot of ohattel mortgage, paraphed "He Varietur"; mortgage passed before Betrand I. Cehn, a notary Public for the Parish of Orleans on September 11th, 1919, mortgaging to pie intiff a oertain Seven passenger Cole touring oar-Ho, 50740, to secure the sum of $1663.69, money loaned and advanced by plaintiff to defendant in partial representation of whioh said indebtedness the aforesaid eleven notes were given plaintiff by defendant; the notes and oopy of the aot of mortgage are annexed to .the petition. They further allege . that an the notes in suit are past due and unpaid and under the aot of mortgage and oonfession of judgment, the property described may be seized and .sold by execu-tory process for oash and without appraisement, and in' case of suit the'defendants promised.to pay the fees of the attorney employed for thet purpose, whioh fees were fixed at fifteen per cent. Plaintiff further evefs' that all said promisory notes- are endorsed by the Allen Sales ■ Company, oomposed of Theodore Brank'and F, J. Weinberger, who are indebted in solido- for the full amount, of this olaim, prinoipal, Interest and attorney's fees and pray for judgment for the amount olaimed to' be . due in thtir petition.

The defendant, Javier Figueroa, U. did not answer cr inr-ke eny t-ppee-ra-nce in this oase, but the Allen Sales Company end the individual members cf st-id firm, Theodore Frank-and F. J..Weinberger, snsiv'ered, admitting th- -t they v/ere the same copartners composing the &3c2:khxxS1x Allen Seles Comptny, they executed the note in question, but deny they ere indebted to jli-intiff in th1- sum cf $1525.04 or sny other sum wh'tsoever on the note sued on; rdii.it further that ..-li-intiff is the holder and owner before maturity end for & vsluoble consideration cf the notes in question, end thrt arid not^s ere identified with the oho.ttel mort-g ,a,e herein granted on ’-- Cols Touring Car, heroin described. Further f-n'wering defend'nts -admit the en .cr icment on the toteó herein sued cn but deny th t th-y or cither cf them ■ re in < ny my indebted to pit intiff, bee use plf intiff’e corccr-ticn w s eng- ged i-t the time of their acquisition of the notes herein =ued on, in the business of di:-oount-ing mcl handling, buying >'nd telling notas -.nd ether com-r/.'.rci'l ptpors s-'cnr?d by Chattel mortr> ges cn automobiles; ¡-nd averring- further that iJla-intiff oorpor-tion advertised end solicited the business of v> ricus .-.uta-nobile dealers fer the h-ndling or discounting of their ohi.trel mortgage not»s '-nd th-'t the busineaw; of def'-nd-nts vr-• -solicited, both by letter md in person by the pi intiff oerpero-tion through its respective officers '-nd • g&nts, And ".verring th'-t in connection with its efforts to secure end obtain business as ' fort.-a id, th'* e--id pi-'intiff printed nd cir-cuí1 ted for ■ the inform-- tion ---nal use of the ,ublic xi-ad.-aits certain '-dvertising m-.tter ni «ohedule of ch-rgss. Th-t they oh- rg d d-'fend-ntc with the _;r--...i- -ms of incur1 uc? acrid thus giving to dofen-.\ nt a. b :olute a- -curity in c! "--e of ny losa. And further í ns-1 ring -. vtr th- t th- ■ ut'.mc jila ■crib -i m ,h- -tit'en ■ n-d th? -.ob of mart,, ge h-d b:--n -ar-ng ’.CPy oanv rt. by J vi r Flg.-.t rot '.l,, the purch. ser -n.l a l:--r of tí- net ■ nd th- mert-p gcr cf lh.- s-id c r; in-., tb- se c<-n ■=■ a.ef u.bntf. jji-p ¡i.vised of the e-id wrongful' act of conversion they imi.-.edif tely notified plaintiff end plaintiff through its agent end represent'tive accepted no-ticie and informed jlefen dents they were protected by re;-sen of the insur*. noe,end subsequently for r>- sons unknown to defsn-i»nts demand w”s m**de upon them for payment of these notes, which de-!i;;. nd .v- o nfused • nd pi*, intiff denied there w! a any inaur-noe on e.a id c* r covering said wrongful conversion, /.nd further • nav/er-ing allege th-1 they paid to dsfxKáx pi* intiff, the yrsmitu.. charge by it for wrongful conversion insur'noe on •-.*. id car, .-.nd vh-t the policy covering sí id ocr ir> or should be in the pc csession and under th? control of plí intiff, is oil other policies on s-id car issued -1 the time and paid for in the same way end at the same time by defendant. Th-t plrintiff ie legally indebted to end can or should heve -ism'.nded c fecc-very fro», the Insurance Company the amount of the policy collectible uniar the wrongful conversion policy, and if it h- s fc*iled or negletted so to do, it was solely at f'-ult end its lechas feas relieved ind re-lersed defend-nts herein from any responsibility on the s**id ftotes.afxikxxx Hence pr*-ys for ¿Hágum judgment in their f**vor, defendants

Subsequently/xixiniiff avers in a supplemental and answer amended/psfcfcfcioa: that the notes sued on were, materially ; i_ tered without the oonsent of defend*nte herein, without their . knowledge or *uthorlty, end that they have never assented thereto, and that sa-id material alteration w?e made subsequent to the endorsement thereof by defend-nts, and after delivery of the said notes herein sued on, end therefore for that reason defendants are not responsible. Copies of the notes are annexed to the petition and are offered in evidence, together with certified copy of ohe.ttel mortgage executed before Bet-trsnd I. Cshn, on September 11th, 1919, and after offering the notes and mortgage, plaintiff rested their ease.

The first ’witness offered by the defendant in this oase is G. Owen Vinoent, and he was called.on cross-examination, and after stating that he had been President of Plaintiff corporation since its organization and aotually in charge cf its affairs, then followed:

Q. The oompany issued a p'rospaotúB and other printed matter in oonneotion with its campaign for the sale of its stook and for the obtaining of businessT
A. Yes, sir.

At this stage of the proceedings, oounsel for plaintiff made the following objeotlon:

"X went to make this objection at the outset, so that . it osn apply throughout. We object to any testimony for the purpose of varying the written oontra.ot of endorsement; and we would like to have the same objeotlon apply to all testimony," By the Court:
"X will let the objeotlon go to the effeot, with the reservation of the objeotlon."

We are convinced th*t the ruling of the Judge was an error.

ttodBr the Negotiable Instrument Act of the Legislature of 1904, being Aot No-. 64; Seo. 63:

"A person who indorsed a note in blank before its delivery to the aiqzsxsc payee is bound as endorser and parole evidence is not admissible to prove that he signed the note' e-s surety."

In the c?ee of Neosho' Hilling Co. vs. Termers Co-op. Warehouse Stick Co. et *1, found in the 130 Le. Rep. at page 050, the o^se in question was one where the Court of Appeiil asked for the interprete-tion of the Negotiable Instrument Law in reference to whether or not a person placing his signature upon an instrument otherwise than as maker, drawer or aooeptcr, is -deemed to be on endorser, unless he olearly indicates by appropriate words his intention to be bound in some other capacity.

The Court of Appeal propounded this question to the Supreme Court:

"Does the sot just referred to establish a conclusive presumption tint e- person not a msker, driwer, or ao-oeptcr, who places his signature on z note or bill, is an endorser unless he olesrly indicates by appropriate words his intention to be bound in some other capacity? Or does it'-merely establish a presumption to that effect, which may ' be rebutted by the evidence of the oonsent.and intention of . the person to be bound in another oppaoity?"

The Supreme Court goes on to answer .the question as follows:

"The law deems suoh a person to be an endorser, unless by appropriate words he indicates an intention to be bound in some other oape.oity. If no suoh -words appear between the four oorners of the instrument,suoh a person is deemed to bo an endorser. In other words, the lawmaker's intent is that the question of the oppaoity of s. person, whose signature appears in s. .bill or note, is to be determined by the words of the. instrument. The aot of 1904 settled in this state a number of questions, on which there was s greet conflict of judicial opinion throughout the states of the Union, and, among them, the status of irregular, or anomalous, endorsers of oommeroi'-l paper. A person,- not a party to the paper, a.s maker, payee, or holder, who placed his name on the baok of the note at its inception, had been variously held to be sn endorser, maker., surety, or guarantor. 7 Cyo. 664 et seci. In a Hew York suoh person was held »s en endorser; in Massachusetts, as maker; in Louisiana, as surety for the maker; and in some other states, as a joint maker to the payee. Id. The Aot of .1904 followed the Hew York rule, and the oerteinty, so desirable in the matter of mmmpss commercial paper, wiuld.be destroyed if the capacities of the parties as they appear on the instrument oould be ohangsd by parol evidence. The rule as lsid down in the Act of 1904 is very plain and simple, and where the lew mekes no exception the-court can make none.
ÜÍS therefore answer the first question in the affirmative, and the second in the negative."

In Corpus Juris, Ho. ,8, Seo, 133, /ssegSgKStjik 75:

A person piecing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he dearly indio=t«s by appropriate words Ms intention to be bound in some other caps city.

Citing numerous authorities under Sections A end. B th'-.'t same pore.graph.

So thatt we hold under the -Negotiable Instrument Aot and under the decisions referred to, if defendants »t the time of-signing their names to the note had then made any exceptions by reason of'the signatures, the evidence might under ouch circumstances have been available to the def*nd'.nts in this oí ce, but not having done this, under the law -.nd the decisions, this testimony is untensble.

Therefore, the objection to all the testimony m-de should have been maintained,

other ’..-here The only/ question far determination is/xhxthxs the has piece of payment of o note is left bl;-nlo/ the holder the right to fill in a convenient pi see7. We answer this in the affirmative.

The Negotiable Instrument Lew expressly pr ¡vides ■that "where the inetr’.uaent is wonting in any material p¡-r-ticul»r, the person in possession thereof h< s prim' f' oie authority to complete it by filling up the bl* nice therein." Also see Corpus Juris, Bills ■ nd Motes, Par-- gr* ph 313, p' go 133, and ptjr.grvph 315, pi.ge 185.

For the reasons assigned it is ordered, adjudged ond decreed th>t the judgment of the lower Court in thie case be and the -reme is hereby annulled, rev-, reed ¡.nd .-..voided, ■ nd tho.t there may now be judgment in ft vor of the Automobile Finance fcoSeouritles Company against the Alien Sr.les Company, a legal firm composed of Theodore Ersnk end F. J. Weinberger, individuo-lly and in solido, in the full sum of §1535.04, with Interest &t the rate of eight per oant from maturity of the obligation until paid, together v/ith attorney's fees of fif- and teen per cent on prinoipel,/interest,end for costs of both oourts,

-Judgment reversed "nd render»!-  