
    No. 865
    First Circuit
    LUCAS E. MOORE & CO. v. HURSEY TRANSPORTATION CO.
    (June 30, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    Burns & Burns, of Covington, attorneys for plaintiff, appellee.
    S. W. Provensal, of Slidell, attorney for defendant, appellant.
   MOUTON, J.

Defendant company executed a promissory note for $500 in favor of plaintiff company, September 30, 1930, payable in October, 1930.

The execution of the note is admitted, the sole defense being want of consideration.

The proof is that defendant was indebted to plaintiff in a sum exceeding $500 for Insurance premiums. It is shown, and not disputed, that this note was given in part payment of the account for these premiums, and that the account was credited up to the amount of the note. This, pre-existing obligation of the defendant constituted a legal consideration for the note which embodied a valid binding obligation.

Counsel for defendant contends that there was no novation and there is nothing therefore to prevent plaintiff from suing on the old debt. The question of novation is not raised in the answer or pleadings.

Novation is not an issue in the case, and even if it were, as defendant’s account has been credited to the amount of the note, it need not entertain any fear that plaintiff could hereafter recover for the whole debt.

The judgment below is in favor of plaintiff for the amount of the note, in which we find no error, but we will not, however, grant damages for a frivolous appeal asked for by appellee.  