
    7997.
    DAVID R. HUMPHREYS VS MEMOURS COUSIN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O f I 3 I 0 III

By his Honor John St. Paul.

This is a suit upon promissory notas. The defenses ara .■ That plaintiff is not a holder in due course, hut sues

or aooount of one Hiddlaston Kenner, his attorney of reoord, who is the real owner of said notes. 2. That said notes hare been paid in full in capital and intorest to said Kenner, ¡5. Alleged usury, 4. A suggestion that said note3 really represent only amounts advanced for expenses to be incurred in certain joint ventures between said Kenner and the defendant, in which they were to share equally after deducting expenses, 5. A plea that in a certain joint venture JCenner received as his share i?2E0 out of which $125 Was to be applied upon the notes, 6. That for nino months Kenner oocupied oertain premises belonging to defendant, in consideration whereof Kenner was to rebuild the felloes and repair the premises, but Sid not do so; wherefore defendant olaims he is entitled to $225, or $25 per month, as the value of the occupancy, and Y. That Kenner whilst occupying said premises destroyed the furniture and fences, thereby causing damages to the extent of $500.

X.

That plaintiff is not a holder in due course, and Kenner is the real plaintiff, is not disputed. But as the trial ludge allowed defendant full latitude in setting up against plaintiff any defenses he might have against Kenner, the defendant has no cause for complaint. See Colovich vs National Fish Co, 8 Orleans Appeals 47, citing 122 La 871, 124 La 562, 41 An 1, 18 An 483.

XI»

Shere is not the slightest attempt in the evidence to show that defendant ever paid anything whatever on account of these notes to Kenner, or to any one else,

III.

She matter of usury is not even referred to in the evidence.

IT.

$he suggestion that the notes represented only advances for expenses is inconsistent with the alleged usury, inconsistent with the alleged payment, and utterly refutted hy defendants own testimony. Kenner denies it Absolutely.

V.

Just v.-hy Kenner was to apply one half of his share in a certain deal to the partial extinguishment of-defendants debt to him, is not shown in the testimony; indeed there is no attempt to do so, as defendant does not even mention it but contents himself with testifying that in that transaction he himself was fair and liberal and Kenner not at all so. But the defendant's own testimony on that subject leaves a distinct impression that Konner expected him to pay something on the notes out. of his (defendant's) share when he received it; which expectation was not realized.

VI.

The property occupied by Kenner was under seizure and vacant; Kenner undertook to fight the seizure on a contingent fee, but was uhsuccessful. It in inconceivable that anyone, especially if versed in law, would have undertaken to make extensive repairs upon property which ha held by a tenure so precarious and with the sheriff likely to call upon him at any moment for rent. Kenner denies there was any agreement beyond permission to occupy the premises as quasi carb-takér, and the circumstances tend to corroborate him.

VII»

The evidence does not show what damages if any Konner did to the premises, nor tho amount of such damages if any. Kennor denies that he damaged anything whatever; and the fact that he had a half interest in the property if he succeeded in saving it, is very persuasive evidence that he did not do so.

7X11»

On the whole we arise from; a consideration of this case with the firm conviction that there is no merit whatever in the defenses set up.

April 18th, 1921.

She judgment appealed from is therefore reversed, and ip is now ordered that there he judgment for plaintiff David 0. Humphreys, und against defendant Ilempurs Cousih, for the full sum of Kiree hundred and Seventy-six & 18/100 Dollars (;376.18) with legal interest from judicial demand until paid and the costs of both oourta.

How Orleans la,  