Sere v. Darby

Citations

• 118 La. 619
• 43 So. 255
• 1907 La. LEXIS 774

Syllabus

<p>1. Notes — Receipt and a Promise to Pat.</p> <p>Petition declares upon a written instrument which was made payable at the death of the obligor.</p> <p>2. Same — Simulation.</p> <p>The defendants deny liability, and show that in so far as the document may seem to be a recognition of indebtedness it is simulated.</p> <p>3. Same — Agreement Different.</p> <p>Defendants aver a different motive than indicated in the instrument, and aver that the consideration contemplated at the time of the execution of the instrument had completely failed.</p> <p>4. Pleading — Plaintiff’s Replt.</p> <p>The rejoinder of plaintiffs is that want of consideration urged, attacks the instrument because null ab initio, and that the plea of failure of consideration, attacks the instrument arising after the instrument had been executed and that one defense is incompatible with the other, i. e., failure excludes idea of want of consideration.</p> <p>The court has not found it possible to arrive at that conclusion.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 39, Pleading, § 189.1</p> <p>5. Evidence — Parol.</p> <p>TÍie question is: Was parol testimony admissible? The court holds that it is under Act No. 71, p. 94. of 1884. and under, the principle laid down by jurisprudence, which enables heirs to prove wanT of consideration _bv testimony which shows that no consideration passed, and' that, in matter of the agreement which was the controlling purpose of the obligor, there was failure for consideration.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 20. Evidence, §§ 1981-1989.]</p> <p>(Syllabus by the Court.)</p>