Lichtenstein v. Lyons

Citations

• 115 La. 1052
• 40 So. 454
• 1905 La. LEXIS 760

Syllabus

<p>1. Appeal and Error —■ Amendments Regarded as Made. '</p> <p>Where suit is brought to recover a balance alleged co be due on two notes, A and B, and the evidence, introduced without objection, shows that note A has been paid, but that a certain amount is due the plaintiff, partly as a balance upon note B and partly as a balance upon a note not in suit, the plaintiff may recover such proportion of the amount as is due upon note B; the allegations as to note A being considered as amended by the evidence.</p> <p>2. Payment — Imputation.</p> <p>Where, in a contract between a planter and his factor, the latter is authorized to impute payments as and when he pleases, but it appears that he has imputed certain payments to the total debt represented by two notes, and has predicated his subsequent statements of account on the total balance due, his right of imputation is exhausted, and he cannot thereafter impute the payments already made, so as to extinguish one note and leave the entire debt as a balance due upon the other. The imputation as made, and its ratification, are equivalent to an agreement which satisfies and takes the place of the original agreement.</p> <p>3. Usury — Discount of Note.</p> <p>The discount of a note, the proceeds of which are placed at the disposal of the maker from its date, is not added to, but is in lieu of, interest, when the interest runs only from the maturity of the note; and where the rates charged, whether for discount or interest, do not exceed 8 per cent, per annum, the contract is not usurious.</p> <p>4. Same — Advances by Factor — Charges for</p> <p>Selling Crop.</p> <p>The agreement of a factor to advance money to a planter at the highest rate, of convencional interest carries with it no obligation to sell the crop of the planter, nor does a charge for the latter service make the contract, considered with reference to the charge for the use of the money advanced, usurious; and the same may be said of a stipulated penalty, imposed