
    Hebert v. Woods et al.
    Where a promissory note is lost by a special endorsee, payment of its amount to a third person who had acquired no lawful title to it, .will be no defence to an action by the true owner.
    A statement made in an account rendered by an agept, not under path, there being no evidence to bring .the account within tbe rule which permits the declaration of a witness to ¡be given in evidence against tlye principal as part of the res geske, is inadmissible in evidence.
    APPEAL from the District Court of West Baton Rouge, Burk, J.
    
      Bennett, for the plaintiff.
    
      Elam, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

The defendants are sued as makers of a lost note. After the loss' of the note the first endorsees, Hébert brothers, transferred their interest to the plaintiff. It appears from the evidence that Hébert brothers were the special endorsees of the payee, and entrusted the note to their correspondents in New Orleans, Ricker Sf Co., with the request that they would ascertain if a certain creditor of Hébert Co,-would take the note in payment, and, if so, then Hebert Sf Co. would endorse the note. A day or two afterwards, Ricker Sf Co. wrote to Hébert Sf Co. that the note was lost or mislaid. The note was advertised at New Orleans and at Baton Rouge, and the drawees were advised of its loss by letters enclosing copies of the advertisement. The testimony by which the above facts are established is uncontradicted, and was believed by the district judge. Under this testimony it is clear that no other person than the plaintiff ever acquired any lawful title to the note. Hébert Sf Co., being special endorsees, were alone capable to transfer it.

The defence relied upon is a payment to Gottschalk, who is said to have received the note from Ricker Sf Co. The testimony on this point is unsatisfactory. It is not proved at what date Gottschalk received the note, nor what consideration he gave for it, nor even that he ever actually had it in his possession. The only witness called for the defence acknowledges that he never saw . the note. He states that he collected the amount for Gottschalk from one of the makers, upon proving to him that the note was lost and that it belonged to Gottschalk; but what facts were proved to induce the maker to pay, is not shown.

Under the evidence the district judge properly concluded that the title of Hebert brothers was never lawfully divested, except in favor of the present plaintiff; and that if a payment was really made by the makers, it was made incautiously, and was ineffectual against the true owner.

The evidence adduced by the plaintiff to prove that the payee’s endorsement was special, was not inconsistent with the averments of the petition, and was properly received.

The court properly rej acted the copy of Ricker S¡- Co’s, account, made out in the hand-writing of Ricker and signed by him, in which the note was credited to Hebert brothers. If Ricker himself was a competent witness he should have been examined. The plaintiff' could not be bound by his ex parte and unsworn statement. It was'mere hearsay, there being no accompanying evidence to bring the document within the rule, which permits the declaration of an agent to he given in evidence against the principal as part of the res gesta.

Judgment affirmed.  