delivered the opinion of the court.
This is an action against the surviving partner of a commercial firm. The petition charges, that the partnership drew an order, or an inland bill of exchange, on a mercantile house in New-Orleans, which was not accepted or paid by the drawees; and further, that the firm owed the plaintiffs for the freight of certain merchandise, shipped on board a steam boat, of which he was the proprietor.
The answer puts at issue the facts alleged in the petition, and also contains a plea, that the goods shipped on board the steam boat, were improperly detained an unusual length of time by the plaintiffs, and owing to the delay, the defendant sustained a serious loss; the value of the merchandise having depreciated between the time when it should have reached its destination, and that in which it was actually delivered.
The court gave judgment in favor of the plaintiff, though for a less amount than that claimed in the petition.
The defendant appealed.
‘And he here contends the judgment below should be reversed.
I. Because no notice of the dishonor of the hill was given to the drawers.
II. The court erred in receiving testimony to cure the want of notice.
a promise by abm’oTexcíiauge Lily notified^of the drawee’s refusaito pay it, is a waiver of Ins right to protest usual form. witeíírough't o5u a and °theXdtfeifdl was not* charged in the petition, upon his promise to pay after pr> seiitmeut or tha bill to aud refusal theSmroe. and months before the anfwM apprised charged'Im*'tiut ground,byadepositionwinch was taken: held that evidence of such pronrse was ad-objected to on“ue tri“LIII. And it erred, in not allowing the defendant all the credits he had offered and proved against the claims oí’ the petitioners.
In discussing the subject of want of notice, the counsel have gone somewhat at length into the question as to the necessity of protest on inland bills of exchange. It has been contended on one side, that no other evidence can be necessary of demand and refusal to accept or pay; and on the other, that the doctrine relied on, is solely applicable to foreign bills of exchange. We have not found it necessary to form an opinion on this point, for, admitting the objection well taken, there is evidence that the defect (if il be one) was waived. One of the partners promised to pay the draft, . . after he was notified that the drawees had refused to do so.
It was however urged that this testimony should not have been received, as the allegations in the petition did not charge responsibility on that ground. What weight this objection would be entitled to in a case differently circumstanced from the present one, we need not say. Here it appears depositions were taken eighteen months before the trial, and by these the defendant was apprised that liability would be attempted to be fixed on him on that ground. _ The case comes completely within those of Ory vs. Winter, and Rals on vs. Barclay, already decided in this court. 4 N. S. 283. 6 Martin's Reports, O. S. 649.
An attempt has been made to show that the judgment below is erroneous, in not making certain deductions from the plaintiff’s account, for freight. The deduction is claim- . . ® . cd rnncipally on an alleged loss m the non-dehvery of the 1 1 J ° J cotton in the regular delay, and in damage sustained by the ° J J merchandise after it was shipped. But the evidence has not satisfied us that there was any unnecessary deteniion of the merchandise, on the part of the plaintiff, or that the damage accrued through his mal-feasance.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. ’