
    No. 4602.
    Court of Appeal, Parish of Orleans.
    SAMUEL E. SUTTER VS. HARYEY W. SMITH.
    Issues of fact only are involved herein.
    Appeal from Civil District Court, Division “A.”
    Lazarus, Michel & Lazarus, for Plaintiff and Appellee.
    M. D. Dimitry, for Defendant and Appellant.
   DUFOUR, J.

To this suit on a note, the plea of want of consideration is opposed, based on the suggestion that it was given in payment for certain shares of stock in the Southern Trade Exchange, Ltd., which, the defendant claims, never had a legal existence under the laws of Louisiana, and that the liabilities of the same exceeded its assets.

January 25th, 1909.

Rehearing refused, Feb. 8, 1909.

There is no charge of fraud made in the answer.

The -testimony is, in some respects conflicting, but it is clear that the district judge, where such conflict arose, accepted the recollection of the plaintiff.

We do not find it necessary to inquire whether the company was legally organized; it was a going concern, doing business, and its status has never been questioned by the State or by any of its creditors.

The defendant had ample opportunity to look into the matter before making the purchase.

He actively participated in the management of the business, and when his note for $200 for the purchase price became due six months thereafter he paid $100 on account, and for the balance gave the note now sued on without protest or complaint.

It was only when, six months later, or a year after his purchase, he wished to dispose of his stock, that he ascertained, as he claims, from lawyers that the alleged corporation was not properly organized.

What he purchased, according to his own statement, was an interest in the business of a going concern; it is immaterial as between -the parties whether it was a corporation or a partnership. In either ease he reaped the profits, if any, and assumed the hazard of possible losses.

There being no charge of fraud or misrepresentation, we find nothing in the record to sustain the defense.

Judgment affirmed.  