
    No. -
    First Circuit Appeal
    FIRST STATE BANK AND TRUST COMPANY v. J. E. SMOOT AND COMPANY, INC.
    (March 4, 1925, Opinion and Decree.)
    (June 12, 1925, Rehearing Refused.)
    
      (Syllabus by the Editor.)
    
    1. Louisiana Digest — Bills and Notes— Par. 148, 150.
    Under Section 89 of Act 64 of 1904 the negotiable instruments law unless there is notice of dishonor to the drawer endorser of a draft, the drawer is discharged.
    2. Louisiana Digest — Pleading—Par. 62.
    An exception no cause of action aimed at a petition, a suit to enforce payment of a draft, which does not allege notice of dishonor to the drawer and endorser thereof, should be maintained.
    Appeal from the Parish of Livingston, Hon. Columbus Reid, Judge.
    This is a suit to enforce payment of a draft. There was an exception no cause of action filed which was overruled. There was judgment for defendant on the trial of the case and plaintiff appealed.
    Judgment overruling the exception no cause of action reversed and plaintiff’s suit dismissed.
    W. S. Rownd, of Hammond, attorney for plaintiff, appellant.
    Kemp and Buck, of Amite, attorneys to-defendant, appellee.
   MOUTON, J.

Plaintiff, in its petition, alleges that J. E. Smoot and Company, on October 27, 1920, drew a draft on the Columbia Box Factory Inc., to its own order and by it endorsed, for the sum of $399.23; and, that it acquired this draft, in good faith before maturity and for a valuable consideration. Reserving its rights against the Columbia Box Factory, acceptor, and the Ten Day Grocery Co., endorser, plaintiff sues defendant company for the amount of the draft, with exchange and legal interest.

The court overruled an exception of no cause of action filed by defendant, but rejected the demand on the merits.

Plaintiff appeals.

Non-payment of the draft is alleged in the petition but there is no allegation of notice of dishonor to the J. E. Smoot and Company, drawer and endorser. Such a notice is required by Section 89, of Act 64, 1904, or else the drawer is discharged. Nor is there any averment in the petition that notice of dishonor was dispensed with or was waived either expressly or by implication. Plaintiff having failed to so allege, the petition discloses no cause of action. 120 La. 711.

It is therefore ordered, adjudged and decreed that the judgment overruling the exception be avoided, and reversed; that the exception of no cause of action be and is hereby maintained, dismissing plaintiff's suit at its costs.

ON REHEARING.

LECHE, J.

A decree maintaining an exception ’of no cause of action in this ease, was entered on March 4, 1924, and the case was again submitted to this court, at Amite, on May 6, 1925. Presumably a rehearing was granted, but the written order granting such a rehearing, is not in the record. Nor do we find in the record any brief on behalf of plaintiff, either on the first or the second hearing. With the lights before us, we can discover no error in our former opinion and for that reason

It is ordered that our former decree be reinstated and made final.  