BELL vs. NORWOOD, ADMINISTRATOR, &c., 7 La. 95

Bullard, J., delivered the opinion of the court. This is an action instituted in the Probate Court, against the administrator of A. T. Norwood’s estate, in which he claims the sum of five thousand four hundred and seventy-one dollars, for moneys advanced to the intestate in his life-time, for services rendered as commission merchant, for costs paid on acceptances for him, and as guarantor to one Neill, as well as for goods and merchandise sold and delivered to him, from June, 1831, to June, 1832, according to an account current annexed to the petition.

That account exhibits a balance on a former account of about seven hundred dollars. It credits the deceased with sundry lots of cotton, sold at different times; and charges him with various drafts and notes paid by the plaintiff, in the course of his transactions with the intestate. The defendant pleaded the general denial, and judgment being rendered in his favor, for a balance against the plaintiff, the latter appealed. It appears from the evidence in the record, that the deceased and the plaintiff stood towards each other, for some years, in the relation of principal and factor.

The latter received the crops of the former on consignment, for sale, and kept an account current, showing the amounts so received, and the sums paid on the drafts of the deceased, according to the usual course of business between planters and commission merchants.

The account sued on shows a debit and a.credit sicle5 an¿ many of the items of charge against the estate consist of sums paid on drafts and notes taken up by the plaintiff, and the notes and drafts are produced in evidence, as proof of the items of the account. oilman'1 amount current founded on a long course of commercial .tween°*theS pariies, m which charged for sums Srafts^° accepted tlie possession'^f the draft by the nAVfadeS erfments chargedm the account, and CTíLnce^nTupinthf/gTilridaccount. .anacceptor of‘a bill is bound to show not only the drawing and acbiUandTitípayment, but that it was put m cix*cuiatíon afteraethatatiie’drawer hb bands“tlSapplies only to caeeptoi'61 declares exchange against the drawer.

Where drafts an account curTQuay awTulose dence ar^payable to Gray, if dates of the ^d\vithC°those charged in the account, they wm he received ,n R is urged by the counsel for the appellee, that the-acceptor, in an action against the drawer of a bill of exchange, ° is bound to show, not only the drawing and acceptance of the bill and its payment, but that it was put in circulation after acceptance, and that the drawer had not funds in his hands. That the drawer is always presumed to have funds m the hands of the acceptor, and that the acceptance itself is evl<lence of the fact.

This rule, to a certain extent, has been recognised by this court. But we are of opinion, that in the course of transactions like those shown between these parties, ihe possession of the draft by the acceptor, is primd, facie evidence of payment, to be charged in account current, and may well be given in evidence in support of items in such general account.

They are generally drawn in anticipation 0f produce to be shipped to the drawee, and the application °f the strict principle contended for to a case like the present, might be productive of the greatest injustice: and it seems to ° * ° J us to apply only, to cases when the acceptor declares upon a hill of exchange against the drawer. In the case before the c0llrt, the execution of the drafts is proved; they are pro-7 1 7 J r duced by the plaintiff; and' a witness, who was the bookkeeper, swears to the correctness of the different items of the account as charged.

One of the items charged in the account, is a sum of ñve hundred dollars, for two drafts paid in favor of J. H. Gray, 8-11th February, 1832. The two drafts adduced in evidence, are dated 8th February, 1831, at twelve months, in favor of J. S. R. Guay. It is contended, that there is such a variance in the name that they were inadmissible in evidence, and a bill of exceptions was taken to the opinion of the court, overraHng' lhe objection. The amounts and dates of the drafts correspond with those charged in the account current, and the only difference is in the name of the original holder; Guay, instead of Gray.

The strict rule contended for, applies with greater force in cases where the action is brought directly on the instrument. In this case, the money is charged as paid to Gray, and the draft and endorsement on it, shows that it was paid to Guay.

As evidence of a disbursement made on account of the intestate, we think the document admisible, and the variance not fatal. of guarantee must strictly to^harge tlic _ guarantor: gQ where A. re— commendedB to //01latter made /k? ad: D, as a firm, on guarantee fiidd bmm(i thereby, Tke test,m°ness to a signa]ie/a/Vthe party ciidibmVisnot impeached, win not be invalidaled by the negao^oath^/f two witnesses m.ade on a comparison of hand writing hfs^tgn^re'to do<rluneil.t?onme in the suit. mi . , , . „ i . 1 he estate is charged with a sum of one thousand ninety six dollars seventy-nine cents, as the amount of account of Hardesty and Neill, guarantied by A.

T. Norwood. In support of this item of his account, the plaintiff produced two drafts of Hardesty and Neill, making together about that amount and * j < — *. a letter addressed to the plaintiif by the deceased, in which he says, “any thing you can do for the bearer Major S. W. Neill, whom I hereby introduce as my friend, will be done for me, he being a merchant in Clinton,” and he adds, “ P. S. If you should accept for Mr. Neill for one thousand dollars, I will be bound (by) this note.” We concur with court of the first instance/that the liability of the estate, is not sufficiently proved.

It is a settled rule, that guarantees are to be construed strictly. Norwood might have been willing to become the security of Neill, and not of Hardesty and Neill. The engagement was personal, as to Neill, and did not, in our opinion, authorise any advance to a firm, of which he was a partner, on the credit of Norwood. 4 Cranch, 224. 1 Mason, 368. Coxe’s Digest, 351. The genuineness of a note of one thousand four hundred dollars, charged in the account, is contested by the administrator. Its execution by the intestate, is positively sworn to by a witness, whose credibility is not impeached.

That evidence is opposed by the opinion of two witnesses, who state ... . , that the signature differs, m some respects, from the common signature of Norwood. One of them says, that it has no resemblance to the signature of the same party, to certain ° 1 J documents referred to, and filed m the suit.

These negative statements cannot outweigh the direct affirmative oath of the witness, who testified that he saw the note signed: and we 7 & 7 agree with the judge below, that its execution is sufficiently proved.- Where the amount of a debt or an agreement to pay money, exceeds the sum of five hundred dollars, the testimony of one witness alone is insufficient to prove such debt or demand, It is urged, that the first item of the account sued on, is not sufficiently proved by the oath of a single witness, and the defendant relies on the 2257th

article of the Louisiana Code. That

article declares, that all agreements relative to personal property and all contracts for the payment of money, when the value does not exceed five hundred dollars, which are not reduced to writing, may be' proved by any competent evidence. Such contracts or agreements above five hundred dollars in value, must be proved at least by one credible witness and other corroborating circumstances.

The counsel for the plaintiff endeavors to establish a distinction between an agreement to pay money, and proof of the balance of an account on settlement; and contends, that the silence of the intestate, when the account was rendered showing a balance of seven hundred and forty-three dollars; proved by a single witness, is sufficient evidence of such balance.

We cannot adopt this reasoning; proof of a state of indebtedness, from which an agreement to pay is a legal inference, is in substance proof of the agreement itself, and where the amount exceeds five hundred dollars, the testimony of a single witness is not sufficient. But, he further contends, that the evidence is corroborated by a circumstance shown on the trial. That the defendant produced on the trial a letter, which is in the record, from the plaintiff to the intestate, in which the existence of this balance is mentioned as the reason for not accepting a draft at sight, drawn on him by Norwood.

The letter is of a date prior to the one on which the balance is charged, and the alleged balance is not the same. This, therefore, is not, in our opinion, a fact which goes to prove that the balance claimed was due, as charged. This item of the account, must therefore, be rejected. In the progress of the trial, the defendant offered in evidence certain letters and accounts of sales from the plaintiff, of a date anterior to the first item of the account sued on.

Their introduction as evidence was opposed, on the ground that they were irrelevant, and a bill of exceptions taken to their admission, as documents emanating from the plaintiff, and relating to the money transactions of the parties, we think them admissible. But the plaintiff cannot be charged with the amounts of sales shown, because, although the evidence of Harvey may be insufficient to prove a balance on settlement afterwards, so as to enable the plaintiff to recover that balance, yet it suffices to show that the funds received previously to that date, had been accounted for.

Proof of payment is not proof of a contract. If the defendant seeks to charge the plaintiff for cotton sold on his account, prior to the 3d June, 1831, he is repelled by evidence that a settlement of the account took place at that time, which resulted in a balance in favor of the plaintiff. The record is full of evidence, that an account current did exist between the parties, in relation to the sale of produce, and tbe witness proves that a settlement took place at a particular time.

Accounts and letters relative to sales made by the plaintiff, and rendered to the defendant anterior to the date of the first item of the account sued on, are admissible in evidence ; because, it may also be shown that a subsequent settlement took place, and the moneys arising from such sales were accounted for. The re-possession of a note once specially endorsed by the payee, is not evidence of title to itjbutthatil is, if the transfer is made in blank. Parole evidence to prove an agreement to pay interest at ten per cent, is clearly illegal and inadmissible.

It is further contended by the defendant, that in relation to the two notes sued on, the plaintiff, who was the original payee, and appears to have endorsed them, cannot recover without showing a re-transfer to himself. Both the notes were drawn by Norwood in favor of the plaintiff, and by him endorsed in blank, and both show a subsequent endorser in blank. This court has held, that re-possession of a note once specially endorsed by the payee, is not evidence of title, but that it is, if the transfer is in blank. 7 Martin, N. S. 353.

Parole evidence to prove an agreement to pay interest at ten per cent., is clearly illegal and inadmissible. Rejecting the first item as not proved, the amount charged on the guarantee, and tbe interest account, there appears to us to be a balance fairly due to the plaintiff, of three thousand four hundred and thirty-five dollars and twenty-eight cents. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be avoided and reversed, and that the plaintiff and appellant recover of the defendant, as administrator of the estate of A. T.

Norwood, deceased, the sum of three thousand four hundred and thirty-five dollars and twenty-eight cents, with costs in both courts.