Edward E. Stockmeyer & Co. v. Weidner
Supreme Court of Louisiana
APPEAL from the Sixth District Court, parish of Orleans. Mghtor, J. E. W. Huntington and T. Gilmore & Sons, for plaintiffs, contended: Eirst — The giving of a check (not paid upon presentation) is not.payment ; nor is it novation. 11 A. 28 ; 1 Hall’s N. Y. Rep. 68. Second — The receiving of the check in this case did not operate as an extinguishment of the mortgage note.
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APPEAL from the Sixth District Court, parish of Orleans. Mghtor, J. E. W. Huntington and T. Gilmore & Sons, for plaintiffs, contended: Eirst — The giving of a check (not paid upon presentation) is not.payment ; nor is it novation. 11 A. 28 ; 1 Hall’s N. Y. Rep. 68. Second — The receiving of the check in this case did not operate as an extinguishment of the mortgage note. Pothier on Obligations, p. iii. c. 2, sec. 4, p. 354; 2 N. S. 543 ; 4 A. 281. Third — Estoppel does not apply. One cannot avail himself of an es-toppel who would not have been estopped by it had it been the other way. Bigelow…
1Opinion of the Court
The opinion of the court was delivered by
Spencer, J.
The substance of plaintiffs’ original and amended petitions, may be stated briefly as follows:
*107That plaintiffs held a mortgage note of Daniel Weidner, dated March 27th, 1873, and due twelve months thereafter, for some 14000. That o.n the 7th of September, 1874, Jacob Weidner (a son of Daniel) tendered to plaintiffs his check for $3924 45, on and certified by the Hibernia Bank, in payment of said note and in discharge of the drawer. Said check was received by plaintiffs, who surrendered to Jacob Weid-ner the mortgage note of Daniel. The check…
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