delivered the opinion of the court.
This action is brought against the defendant as the endorser of a promissory note, executed by A. L. Boimare, on the 15th of April, 1832, made payable two years after date.
The defendant avers in his answer, that the note was given for part of the price of certain real estate, sold to Boimare; that, in the act of sale, it was stipulated by the vendor, that the note should not be negotiated until the mortgage, mentioned in the act, as existing and affecting the property, was raised; that the plaintiffs, nevertheless, became the assignees of the note before the mortgage was cancelled, with a knowledge of the stipulation in the act of sale; that the mortgage still exists, and that the note was negotiated in violation of the agreement.
_The endorser aation note is to th/Tightrf ™ surety,and when duce the origi-which the note ^j*osw stipulated the note should not be negociated.At the trial of the cause, defendant’s counsel offered in evidence an authenticated copy of the act of sale, which the court would not suffer to be read to the jury; the counsel took his bill of exceptions, and the jury having found a verdict for the plaintiffs, the court rendered judgment accordingly. Defendant appealed.
We think the court erred. The defendant clearly had a nght to show that the plaintiffs were acquainted with the nature of the .contract entered into between the vendor and vendee, by the act of sale; and this he could not do without first establishing the existence of the contract itself. He had endorsed the note for the maker’s accommodation,' and is therefore, to be considered in the light of a surety ; and, if he could show, that the plaintiffs, at the time they received . , . . , . the note, knew of the restraints imposed upon its assignment, he might avail himself of the same means of defence that appertained to the maker.
We agree with the counsel for the plaintiffs, that the notarial 'paraph affixed to the note, does in nowise restrain its negotiability, or oblige the endorsess to inquire into the conditions under which the original parties had limited its circulation. But if the defendant could fasten a knowledge of these conditions upon the plaintiffs by other legal testimony, he certainly ought to be permitted to do so.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed; the verdict set aside, and the case remanded for further proceeding, according to law, with instructions to the judge, to admit, in evidence, the notarial act offered by defendant; the plaintiffs and appellees paying the costs of appeal.