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not be imputed to a husband, nor was relations with the husband she is unthe wife warranted in deserting him, warrantably jealous. Rickard v. Rickbecause her control of the household ard (1881) 9 Or. 168, 42 Am. Rep. 799. was intruded upon by his daughters In Loux v. Loux (1898) 57 N. J. Eq. by a former marriage and his spinster 561, 41 Atl. 358 (an analogous case), sister, who lived with him, where the it was held that a single quarrel with wife was not without fault in the mat- the husband's relatives, who were ter, and the husband did not encour- visiting at the marital home, afforded age the interference or treat her with no justification to the wife for leaving anything resembling cruelty. Dum- home. mer v. Dummer (1898) – N. J.

The rule which relieves the husband 41 Atl. 149. The case appeared to be from living with the parents of the merely one of an inharmonious house- wife where unpleasantness and hoshold, the female members of which, tility exist is somewhat modified because of infirmities of temper, took where the wife is sickly and unable exceptions to acts of each other which to do the work necessary to maintain ordinarily would be regarded as un- a home, and the husband is financially objectionable.

unable to supplement her efforts in A wife is not justified in leaving this respect. Copping v. Termini because of the presence in the home of (1914) 135 La, 224, L.R.A.1915A, 222, a half sister of the husband, of whose 65 So. 132.

R. E. La G.

FIRST STATE BANK & TRUST COMPANY of Bogalusa, Piff. in Cer

tiorari,

v.
D. A. CRAIN.

Louisiana Supreme Court - December 1, 1924.

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(- La. — 102 So. 513.)

. Bills and notes, $ 1 - effect of attaching rent note to copy of lease.

1. The mere fact that rent notes are, at time of negotiation, attached to a copy of the lease, does not make them subject to the terms and conditions of the lease.

[See note on this question beginning on page 351.] Bills and notes, § 162 transfer of fault, which deprives the maker of the rent notes effect.

benefit of his contract. 2. The transferee of rent notes at

Bills and notes, § 234 right of tached to the lease does not, by the transferee of rent note to benefit of mere fact of transfer, become a party provision in lease. to the lease contract or subject to the

4. A transferee of rent notes atequities between the maker and payee tached to the lease cannot take adof the note.

vantage of a clause in the lease maBills and notes, 8 169 – effect of loss turing all notes upon default in pay

of possession on liability on rent ment of one of them. note.

Pleading, $ 4711 - effect of omission. 3. The transferee before maturity 5. Failure of the maker of rent of rent notes attached to a copy of the notes to plead prematurity of suit on lease is not affected by the equities notes which have not yet matured will between maker and payee arising out subject him to judgment for the agof the fact that the maker was a sub- gregate of the entire series, although lessee and the original lease has been interest will not run until the respeccanceled because of the lessee's de- tive maturities of the notes.

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CERTIORARI to the Court of Appeal, First Circuit, to review a judgment reversing a judgment of the Judicial District Court for the Parish of Washington in favor of plaintiff in a suit to enforce certain promissory notes. Reversed.

The facts are stated in the opinion of the court.

Messrs. Miller & Miller, for plain lection. Payable at First State tiff in certiorari:

Bank, Bogalusa, La. The fact that it appears on the face

“[Signed] D, A. Crain. of a note that it is given for rent, or

“[Indorsed] Jasper Bosco." that the consideration of a note is known to be an executory contract,

I. which may fail of performance, or The other six notes are of like that the transferee of the note had, at

date and tenor, except that they are the time of the transfer, full knowledge of the possibility of the eviction

made payable, respectively, on the of the maker of the note and the con

1st day of April, 1923, and of each sequent failure of consideration, does

succeeding month, up to and includnot destroy the negotiability of the ing September, 1923. note.

So that when the suit was filed Saddler v. White, 14 La. Ann. 173; (March 31, 1923) only the first note State Nat. Bank v. Cason, 39 La. Ann. had matured according to the tenor 867, 2 So. 881; Pavey v. Stauffer, 45 thereof. But plaintiff annexed to, La. Ann. 357, 19 L.R.A. 716, 12 So. and made part of, its petition a cer512; Canal Bank v. Holland, 5 La.

tain lease identified with said notes, Ann. 363; Levy v. Ford, 41 La. Ann.

according to which Jasper Bosco, 877, 6 So. 671; Hubbard v. Fulton, 9 Mart. (La.) 86; Martel v. Lafayette

the payee and indorser of said Sugar Ref. Co. 153 La. 248, 95 So. 706;

notes, leased to defendant, the drawStrand Amusement Co. v. Fox, 205

er of said notes, certain premises Ala. 183, 14 A.L.R. 1121, 87 So. 332.

for a term of twelve months, beginMessrs. Ott & Rich, for defendant ning October 1, 1922, and ending in certiorari:

September 30, 1923, all for a rental Plaintiff should not be permitted to of $45 per month, payable monthly recover under the admitted failure of in advance, and represented in part consideration for the notes sued on. by the notes herein sued upon. In

Continental Bank & T. Co. which said lease it is stipulated that Times Pub. Co. 142 La. 219, L.R.A.

failure to pay any one of said notes 1918B, 632, 76 So. 612; 3 R. C. L. TT

at maturity shall cause all remain232, 271, 273; Cambas v. Josiah Pearce & Sons, 155 La. 491, 99 So. 416.

ing notes to mature immediately and

authorize the holder thereof to proSt. Paul, J., delivered the opinion ceed at once to collect the entire bal. of the court:

ance due, together with reasonable On March 31, 1923, plaintiff attorneys' fees. brought suit against defendant on

II. seven promissory notes of $45 each, the first thereof reading substan

It is admitted that plaintiff retially as follows:

ceived said notes in due course and

before maturity; that at the time it “(Rent Note)

received them they were attached to “Bogalusa, La., Oct. 7, 1922. said lease, and plaintiff knew they "On March 1st, 1923, I

were rent notes, given for future promise to pay to the order of jas rent in accordance with said lease. per Bosco, forty-five dollars, for It is further admitted that said value received, with 8 per cent in- lease was a sublease, said Jasper terest per annum

from ma- Bosco having himself leased said turity until paid, and 15 per cent premises from one Pizzolato, the attorneys' fees if not paid when due owner thereof; that prior to the maand placed with an attorney for col- turity of any of the notes herein

V.

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(- La. 102 So. 513.) sued upon said Bosco had defaulted N. Frey, 137 La. 948, 958, 69 So. upon his lease with said Pizzolato; 757, and is in accord with the genthat the latter had thereupon re-en- eral law of negotiable instruments. tered the premises and deprived de- See 8 C. J. 509, § 718, and 3 R. C. L. fendant of all further use thereof 1067, § 273. (unless under a new lease with him- "The holder of a negotiable rent self.)

note has been held entitled to reIII.

covery thereon, even where circum

stances have obliged the tenant to Defendant did not file any plea of pay the rent a second time. Mariprematurity as to the six notes due, noni v. Levy, 9 La. App. (Orleans)

. according to their tenor, respective- 254—citing Barelli v. Szymanski, 14 ly, on April 1, 1923, and monthly La. Ann. 47, and Tulane Improv. thereafter (of which more here- Co. v. Green Photo Co. 124 La. 619, after); but the defense is that said 50 So. 601." notes are not (under the circum

IV. stances) unconditional promises to pay, but mere conditional promises It is contended, however, that the to pay if value be received in rent, notes sued upon were not negotiable and that same are therefore not ne- rent notes, and much reliance is gotiable notes, and were received by placed by defendant on the followplaintiff subject to the equities ex- ing extract from the opinion of the isting between defendant and said court of appeal: "True, in this case, Bosco, as to whom said notes were the notes bear the mark ‘rent note, not due because of his (Bosco's) but without any other clause or own failure to maintain defendant words declaring (them payable) ‘as in the leased premises.

per contract,' as appeared in ConIn Saddler v. White, 14 La. Ann. tinental Bank & T. Co. v. Times 173, this court said: “If the con- Pub. Co. 142 La. 209, L.R.A.1918B, sideration of the note had not failed 632, 76 So. 612. It is, however, ad

, at the time of its transfer, the mak- mitted in the statement of fact that er cannot set up as a defense that plaintiff knew at the time it acthe holder knew that there might be quired the notes that they repreoffsets against it.”

sented the rent due on a contract of In State Nat. Bank v. Cason, 39 sublease in which the defendant was La. Ann. 865, 2 So. 881, the court the lessee; that they were received said again: "If it were known to by plaintiff while attached to a copy the transferee of a negotiable

of said lease; were given in connecnote, acquired for value and before tion therewith and subject to said maturity, on taking it that the con- contract." (Italics ours.) sideration was future and contin- The words which we have italgent, and that there might be offsets icized are (we think) a misconstrucagainst it, this would not make him tion of the agreed statement of facts liable for the equities between the which, in so far as pertinent, is as original parties.

It cannot follows: affect the negotiability of a note that “(3) That said notes represented its consideration is to be thereafter the rent due on a certain contract of realized, or that from some contin- sublease between Jasper Bosco and gency it may never be enjoyed.” defendant for premises described in

In Martel v. Lafayette Sugar Ref. the pleading, being given in connecCo. 153 La. 248, 95 So. 706, we tion with and subject to said consaid:

tract." (Italics ours.) "This doctrine [above stated] (5) That plaintiff actually knew was affirmed in Pavey V. Stauf- the above facts at the time of the fer, 45 La. Ann. 353, 19 L.R.A. 716, negotiation of said notes, and re12 So. 512, and again in Marx v. ceived said notes while attached to

.

a copy of said lease."

(Italics Accordingly, it will be seen that ours.)

the whole matter hinged upon “Our interpretation thereof is whether the “as per contract" was that whilst it admits that the notes connected with, and qualified, the were received by plaintiff while at- promise to pay, or was connected tached to a copy of the lease, yet with, and merely amplified, the acit was not intended to admit, and knowledgment of value received. does not admit, that same were giv- And the court merely held that the en to plaintiff by Bosco 'subject to “as per contract," in that instance, said contract;' but does admit only qualified the very promise to pay. that same were given by defendant Apart from this, the case decided to Bosco 'subject to said contract.' nothing new or different from what Otherwise plaintiff would simply had been repeatedly decided before. have been admitting itself out of And the case is authority for no court; for were it admitted that other proposition than that conplaintiff had received said notes tained in the language and holding 'subject to said contract,' there quoted above from the opinion of would then have been no room for the chief justice; for the case clearcontroversy herein, and the case ly recognizes the doctrine that a would simply have decided itself.” mere statement in a note that it is V.

a rent note, and that the considera

tion of the note is an instalment of In Continental Bank & T. Co. v.

rent to become due in the future, Times Pub. Co. supra, the difficulty does not destroy the negotiability arose over the peculiar form in

of such note. which the notes were drawn, it being on that account possible, on

VI. the one hand, to construe the notes The question therefore arises, as unconditional promises to pay whether, since the notes, when re$150 for "value received (i. e., to ceived by plaintiff, were attached to be received in future rent) as per a copy of the lease in connection contract;" or, on the other hand, with which they had been given, as mere promises to pay “as per con- plaintiff therefore must be held to tract, for value received (i. e., to be have taken them subject to the received in future rent).”

terms and condiIn the original opinion handed tions of said lease. Bill, and notes down through Mr. Justice Provosty, Our conclusion is taching rent

that such is not the

note to copy of the court held the notes to read in the first sense, viz., as absolute case; that the atpromises to pay $150 (value to be taching of the notes to the lease and received as per contract) ; whilst on delivery of the latter to plaintiff rehearing the court, through Chief merely brought notice to plaintiff Justice Monroe (Mr. Justice Pro- that the notes were rent notes, vosty dissenting), held the notes to as, indeed, already appeared on be promises (for value received) to the face of the notes themselves. pay $150 as per contract, saying: And, as we have already said, “A promise is not unconditional such notice brought home to plainwhich is followed, in the same sen- tiff did not destroy the negotence, by a stipulation to the effect tiable character of the notes. But that it will be fulfilled as per an- plaintiff did not thereby become other contract, whereby the pay- a party to said

-transfer of ment is made contingent upon the lease; leases are not rent notes nonhappening of fortuitous event." negotiable, or even

In this connection, see Tyler v. transferable by mere delivery of the Whitney Cent. Trust & Sav. Bank paper instrument by which they are (our No. 26,255) 157 La. - 102 evidenced. So. 325.

The situation of holders of rent

66

Select of at

lease.

effect.

.

(- Le. - ,

102 So. 513.) notes is perhaps somewhat analo- limine prematurity of the suit as gous to that of holders of mortgage to the six notes which had not manotes; and as transferees of a credit tured upon their face, as he might they may be entitled to such acces- have done, we would have mainsories as the suretyships, privileges, tained his plea and dismissed plainand mortgages by which the notes tiff's suit as to these six notes. But are secured (Rev. Civ. Code, $

ß defendant has made no such plea, 2645). But such accessories are not and we must, therenegotiable in the same sense as the fore, give judgment Pleading-effect

notes themselves, and are generally, on all seven notes or at least often, open to the equities according to their tenor. But since hetween the original parties. Hil- the maturity of the six notes was lard v. Taylor, 114 La. 883, 38 So. not advanced by failure to pay the 594; Pertuit v. Damare, 50 La. Ann. first, it follows that said six notes 893, 24 So. 681, and authorities bear interest only from their respecthere cited. And it is therefore tive maturities; and judgment will not to be presumed that the pur- be rendered accordingly. chaser of a negotiable note means to

Decree. lessen his undoubted rights thereunder by voluntarily assuming the

The judgment of the Court of Apburdens of equities which might ex- peal is therefore reversed, and it is ist between the drawer and the orig- now ordered that plaintiff, First inal payee, any further than as to

State Bank & Trust Company of the accessories aforesaid. And we

Bogalusa, do have judgment against conclude that the mere physical tak

defendant, D. A. Crain, for the full ing of the written lease did not sum of $315, with 8 per cent intermake plaintiff a

est thereon as follows: -effect of loss of possession party thereto,

On $45 from March 1, 1923, un

or
thereby subject it til paid;
to the equities be-

On $45 from April 1, 1923, untween the maker and the payee of

til paid; the notes.

On $45 from May 1, 1923, until

paid; VII.

On $45 from June 1, 1923, until On the other hand, since plaintiff paid; did not become a party to the lease,

On $45 from July 1, 1923, until it is not concerned in, and cannot

paid; take advantage of, that clause in the

On $45 from August 1, 1923, until

paid; lease by which fail-right of trans- ure to pay one note

On $45 from September 1, 1923, feree of rent matures all the

until paid-together with 15 per of provision in lease. rest; which clause

cent attorneys' fees upon the whole, does not appear in

and all costs. the notes themselves.

Petition for rehearing denied Hence, had defendant pleaded in January 5, 1925.

on liability rent note.

on

note to benefit

ANNOTATION.

Negotiability of notes and bona fides of holder as affected by attachment of

paper indicating origin or consideration.

The facts involved in the reported case (FIRST STATE BANK & T. Co. v CRAIN, ante, 347) are very similar to facts which give rise to the question as to the bona fides of a transferee of a note given upon an execu

tory consideration with knowledge of such consideration. The court in the reported case, however, does not discuss this question The question there raised and decided is whether the mere fact that the rent notes

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