
    No. 8332.
    Joseph P. Kearney vs. Succession of R. R. Whitehead.
    The plea of insanity, urged by defendant as caused by habitual intemperance, is repelled by the Couit.
    The doctrine is well settlod, that the ploa of want of consideration of a promissory note given as for value received, does not throw the o?ms probemdi upon the pl.iiutiff, even when he is the payee of the note.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J,
    
      Keunarü, Howe & Prentiss, for Plaintiff and Appellant:
    1. Consideration for promissory notes presumed; party denying consideration must clearly prove his allegations.
    2. Sanity of maker of note always presumed. Peculiar special rules iu Louisiana. C- C. 1788, [1781].
    3. Insanity must be proved to have oxisted at the moment of the execution of the note.
    4. Pecuniary consideration in Louisiana not required. C. C. 1888. “ The requiring a small pecuniary consideration to support an agreement is a mere fiction, which the civil law has never adopted.” Monton vs. Noble, 1 An. 192.
    5. Cause used by civilians in relation to obligations in samo sense as consideration is used at common law. G. C. 1774, [1767].
    6. No allegation nor proof of fraud. Evidence received, showing plenary proof of all of plaintiff’s allegations.
    7. Testimony of medical experts favoring insanity to be received with oaution; in this case witnesses offered by defendant testified clearly in plaintiff’s favor.
    
      Singleton & Broivne, for Defendant and Appellee:
    1. If there be ho consideration given for the note it is null and void. Moutonvs Noble, 1 An. 193 ; B. C. 0. 1893.
    2. The plaintiff undertook to state what the consideration was, but as the alleged consideration amounted really to nothing, ho must fail iu his action He has shown there was really no consideration given for the note.
    3. At the time the noto was executed, defendant was laboring under a temporary derangement; of intellect caused by excessive use of ardent spirits, which was not only apparent, but was also well known to tho plaintiff; therefore plaintiff cannot i\ cover. B. C. C. 17j?9.
   Tho opinion of the Court was delivered by

Pocint, J.

Defendant resists the payment of a promissory note of $2,500, * * * executed by R. R. Whitehead, on the 7th of January, 1879, payable after date to order of plaintiff, for value received, on the grounds: .

1. That, at the time of executing the note, the deceased was laboring under a state of insanity, caused by habitual intemperance.

2. Want of consideration.

The latter plea having been sustained by the lower court, plaintiff appeals.

Burst. The plea of insanity is not supported by the evidence, which is overwhelming in favor of the sanity of the deceased at the time that he executed the note.

The most that was proven by defendant’s witnesses on this plea, is that Whitehead was a hard drinker, and that he had had one or two attacks of delirium tremens, but the weight of the evidence proves conclusively that the deceased was aúnan of more than ordinary intelligence and of considerable mental culture, and that when sober, he was a shrewd business man, as shown by his negotiating, between December, 1878, and February, 1879, the sale of his half of a sugar plantation which had cost a year before $30,000, for the price of $35,000. It is worthy of note that this important transaction was closed by an authentic sale on the 13th of February, 1879, a little over a month after the date of the note in suit, and a little less than a month previous to the death of Whitehead, and that while his insanity is urged as a defense against this note, no one has ever even dreamed of attacking the validity of the sale made by him at a later date, when his insanity, if existing at all, should have increased on him.

At the request of Whitehead, the note was written under his dictation by the proprietor of the St. Charles Hotel, where the contracting parties were then stopping. That witness, and another, equally disinterested, both testify that on that day Whitehead was not only competent to attend to business, but that he was perfectly sober. This testimony is corroborated by his merchant’s book-keeper, from whom he drew $500, preparatory to his departure for Kentucky, to join his family, and two witnesses who saw him off on the train that evening, testify that he was both rational and sober at the moment of Ms departure.

We conclude that the defense of insanity is utterly without foundation. To sustain this plea under the circumstances of this case, would lay the foundation for a jurisprudence under which no man addicted to drinking could be held to any contract which his interest would prompt Mm to evade.

Second. The plea of want of consideration finds no better support, either in law or under the evidence in the case.

Defendant contends that Ms denial of any consideration for the note throws on plaintiff the burden of proving the consideration, and he cites two authorities, which seem to bear him out in the rule which he invokes. 6 N. S. 565, Bowen vs. Veil; 9 R. 183, Copeley vs. McFarland.

But the doctrine enunciated in those cases has long since been reversed in our jurisprudence. As far back as the case of Bradford vs. Cooper, 1 A. 325, the rule has been that the defendant who pleads want of consideration of a note purporting to have been made fdf value ■received, must prove clearly such want of consideration, even as against the payee of the note. The doctrine has beon so frequently reaffirmed and enforced by our Courts, that we consider it as firmly embedded and fixed in our jurisprudence. Byrne vs. Grayson, 15 A. 459; Henderson vs. Giraudeau, 15 A. 382; McGuigin vs. Ochiglevich, 18 A. 92; Robinson vs. Doherty, 20 A. 209; Stephens vs. Lanier, 20 A. 347; Friedman vs. Houghton, 21 A. 200; Roderiguez vs. Lopez, 28 A. 94.

Defendant has offered no testimony in support of that idea. "Wo attach no importance to the statements of three or four witnesses in Kentucky, touching’ declarations of the deceased a short time before his death, of a trouble which haunted his mind, concerning a note of $2,500, or $25,000, which he had signed in New Orleans some time, in January.

This vague testimony vanishes in the presence of the testimony of Drouet and of Milliken, to whom he expressed his intention in February, 1879, of paying this note, and in the face of his attempt to compromise with Koarney, who was willing, on Milliken’s advice, to settle by taking less. Speaking of this note with Milliken, the purchaser of his share of the plantation, and his merchant, on the day before the sale, on the ,13th of February, Whitehead used the following language found in Milliken’s testimony : “As I have sold out, Kearney may be induced to take less, but if he insists upon it, I consider myself bound. I never went back on my word. I am an honest man, and I consider it ought to bo paid.”

This honest intention, though resisted by his administrator, must be enforced by the Courts.

Under the view which we have taken of the case, we find it uuneces-' sary to review and analyze the testimony which plaintiff introduced in support of the consideration of the note, but will merely say that it is satisfactory to our minds, and that it does prove a legal cause or consideration for the execution of the note.

The judgment of the lower court is, therefore, annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that plaintiff do have and recover judgment of the administrator of the succession of Richard R. Whitehead, in the sum of two thousand five hundred dollars, with legal interest from judicial demand until paid, and costs of suit in both Courts.  