
    5464.
    (Court of Appeal, Parish of Orleans.)
    TEUTONIA BANK & TRUST COMPANY vs. JAMES G. SWARBRICK.
    Quest'ons of fact only are involved.
    Appeal from the Civil District Court, Division “E.”
    Dart, Kernan & Dart, for plaintiff and appellant.
    McCloskey & Benedict, for defendant and appellee.
   GODCHAUX, J.

This is a suit to hold defendant as maker of a promissory note endorsed by one Dowty, and the plaintiff appeals from a judgment dismissing its suit.

The first defense is, that the transaction or loan represented by the note was in violation of the prohibition of Section 11 of Act 176 of 1908 (Gay-Shattuck Law), and that consequently no liability attaches upon defendant.

However, the record shows without contradiction that the original loan of $2,500 was made on July 23, 1908, that is before the act of 1908 went into effect. (See Section 16 of Act 176 of 1908.) Partial payments were from time to time made upon the note and on January 19th, 1910, the principal having been reduced to $1,650.00, the note forming the basis of the present suit was executed and delivered in payment of this balance on the old note. Consequently though the new note was executed and delivered when the statute was in force, the object and the consideration of the note was not violative of the prohibitions of the statute in question, but Was solely in payment of the obligation represented by the old note which was valid when made and when paid.

February 19th, 1912.

It is next contended that it was agreed between all parties that the maker was not to be held, but that the emdorser, Dowty, and the Standard Brewing Company, as guarantor, were to be considered and held as the real parties bound. ■ ■

The note itself is unconditional on its face and constitutes the strongest evidence against such a contention, moreover, the record is wholly devoid of the positive and affirmative proof that would be required to overcome its effect as an unconditional obligation. In fact, from tire testimony in the record it would appear that the maker was at all times treated and himself acted as the party directly bound, that the endorsement of Dowty and the guarantee of the Standard Brewing Company, if any such guarantee .existed, were for the benefit of plaintiff as additional security for the payment of the loan.

The lower Court in dismissing the suit apparently proceeded upon the theory that the transaction was reprobated by statute and hence its action must be reversed and judgment must now be rendered in favor of the plain - tiff.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be avoided and reversed, and that there now be judgment in favor of the plaintiff, the Teutonia Bank & Trust Company, and against the defendant, James G. Swarbrick, for the sum of $1650.90, with 8 per cent, interest thereon form June 19th, 1910, until paid; and in the further sum of $3.50 protest fees, together with 10 per cent, on the entire amount of this judgment as attorney’s fees. Defendant to pay costs of all Courts.

Judgment reversed.

Rehearing refused, March 18,1912.

April 23-, 1912, writ Supreme Court denied.  