MIRANDA vs. CITY BANK OF NEW-ORLEANS, 6 La. 740

Bullard, J. delivered the opinion of the court. The plaintiff represents that he placed in the City Bank for collection, and that the bank undertook to collect for him, a promissory note drawn by Fuentes & Co., and endorsed by Felix Formento, all of New-Orleans.

That when the note fell due the notary employed by the bank did not present the same to the drawers for payment, though all the members of the firm of Fuentes & Co. were residing in New-Orleans; and that he did not give legal notice to the endorser of its non-payment, by reason whereof the endorser' was released from his liability by judgment of the Parish Court. He further alleges that the drawers have become insolvent, and he prays judgment against the bank for the amount of the note with interest since it fell due and the costs of the previous suit against Formento the endorser.

The defendants deny all the allegations which tend to render them liable for the amount of the note.

They further say, that if they were even liable to the plaintiff, he has lost his recourse on them, inasmuch as they were not notified of the suit against Formento; that they would have been able to prove on the trial of that cause that Formento had been duly notified of the protest; that shortly after the protest the said endorser acknowledged and confessed that Fuentes & Co., were indebted to him in a certain sum in which was included the amount of the protested note, and for trial of these facts they pray a jury.

Accordingly the case was submitted to a jury whose verdict was in favor of the plaintiff, and a motion for a new trial having been made and overruled, judgment was rendered accordingly, and the defendant apppealed. The principles upon which this case must be decided were recognised and settled by this court many years since in the case of Crawford vs. the Louisiana State Bank, and of Montillet vs. the Bank of the United States. 1 N. S. 214, 365.

It was held, that an agent, who receives a bill for collec- . . - n tion is bound to use the same diligence m giving notice as ° 00 the holder; that the bank was responsible for the acts of the x notary, and that the onus was on the agent to show that the holder of the bill sustained no damage by the neglect of the it . _ . agent to make a proper demand, and to give due notice to the other to the bill.

Tire bank is res-acts'oftiie^notavy notice^of'protest to the endorser,• ana the orna rests upon it, as agent, to show that damage resulted fr“l“rto”bo roabmty.ñomitsh" , Whore a bank or agent receives¡a fails tto°give no-being'brougiif'afwJhVis 'exonenotice °f protest,f thé bank cannot excuse itself on the ground that it was not made a party to the suit, unless it can slow |iVenToUtho ra'I dorsor.

Noticoto an ondorser re siding in New-Orioans, put aemrtLywMig! micu'or used due i*1‘S!I1Ssuffioient dorser. ™' The record in the case of the present plaintiff against _ . h ormento, the enaorser, was read m evidence without objection. It proves that the endorsers had been exonerated because no legal demand had been made on the drawers; and that regular and due notice was not given to the endorsers. 0 0 But it is contended that the plaintiff ought to have made the x ° bank a party to that suit, and not having done so, he has lost his recourse on them. We cannot yield our assent to that proposition.

Even if the bank were to be considered as bound only by personal warranty towards the plaintiff, his recourse on his warranty would not be lost unless the war- * . rantor shows that he could have enabled the plamtin to recover against the endorser if made a party. But this is not a mere case of personal warranty. The bank undertook to take such steps in relation to the note as to enable the holder to enforce payment according to its tenor, and not _ , . , , ,.

Tj upon any subsequent act or undertaking oí the parties* It r J 1 _ may be said that the judgment in favor oí Jb ormento is not ° ° conclusive as to the bank, hut it only follows that the hank ™ this case have shown that in point of fact sufficient legal notice was given to the endorsers. This they have failed to do. The certificate of the notary as to the notice to Fomento is in these words; “by depositing the one (letter) for Felix Fomento in the post office in this city, addressed to .

A him, not being able to find him.” It does not appear that notary was ignorant of the domicil of the endorser, and that he used due diligence to find it. It appeared in the case against Fomento, that no inquiry was made of any of the other parties to the note, and the present plaintiff as nominal endorser to the bank received personal notice of the protest. It appeared in evidence that Both the President of the bank and the Cashier, knew the domicil of the drawer Fuentes and Co. By inquiring of them the notary might have made a legal demand of the drawers at their domicil. This was not done.

The preoeedings of the creditors of the drawer of a note, at which Hie endorser attended in relation to his endorsment, are not admissible in evidence by the bank in a suit by the holder of the note against it for failing to give notice to the endorser by which he was released, to show he has been indemnified, especially when this matter is not pleaded and because it is between persons not parties to the present suit.

When the defendant pleads a general denial and that he was not party to a suit by which the endorser was released for want of notice, he cannot offer evidence to show the endorser has been secured against this endorsement. It is not to be presumed that the endorser intended to make himself uncondition ally hable and waive a demand on the drawer and protest and notice to himself because he attended a meeting of the creditors of the drawer to be so-cured against his endorsement.

In the progress of the trial the defendants offered in evidence the deliberations of the creditors of Fuentes & Co., in order to show that Formento had appeared at the meeting and assumed the quality of creditor for a large sum in which this note was included. This evidence was rejected by the court on the grounds, 1st: That the deliberations were had between persons not parties to this suit. 2d: That the proof would be inconsistent with the defence set up in this case; and 3d: That even were the proof admisible it would beirrelavent, as notice of protest is not to he inferred, but must he formally proved.

A bill of exceptions was taken to this opinion of the court. We think the court did not err! The defence set up in this case rests on two grounds; 1st, a denial of the allegations in the petition, tending to charge the bank: And 2d, that the bank is released because the plaintiff proceeded against Formento without making them a party.

But it is in evidence tbat tbe meeting of tbe creditors of Fuentes & Co., took place before the protest of the note in question; and it is not to be presumed that Formen to intended to make himself unconditionally Háble for the amount of the note endorsed by him or to waive a demand on the drawer and regular notice as endorser. Upon tbe whole we cannot distinguish this case from that of Montillet vs. the Bank of the United States, above referred to. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court, be affirmed with costs.