Boutte v. Martin

| La. | Sep 15, 1840

Martin, J,

delivered the opinion of the court.

This is an action against two sureties on a note. Judgment was given against both defendants, and Martin alone appealed.

The defence of the appellant was, that the plaintiff had neglected to sue the principal in the note, although earnestly urged to do so; and that he had indulged him with a prolongation of the day of payment.

The first plea was correctly disregarded. It is an idle one. The creditor generally requires security, to avoid suing the debtor; and the surety cannot require, before the creditor resorts to him for payment, that he should sue the principal.

The surety cannot require the creditor to sue the principal debtor, before resorting to him for payment. His remedy is, to pay the debt,and exercise the rights of the creditor against the debtor, to which he is subrogated by the payment, or proceed under article 3026 of the La. Code. A verbal agreement, to wait until the debtor can go to a certain place to procure money with which to pay the debt, is not such a prolongation of time, as will discharge the surety-

If he wished the principal to be sued, he must pay the debt, and then exercise the rights of the creditor, to which payment subrogates him; or proceed according to the art. 3026 of the Louisiana Code, to be indemnified by the'principal debtor.

The prolongation of the time of payment, without the consent of the surety, discharges him. None appears to have been given in the present case. The plaintiff had two substantial sureties, on which, we believe, he implicitly relied; for he frequently asserted, that it was not his intention to sue the principal. His conscience-was probed by the appellant, and he denied having granted any prolongation. It is, however, in evidence, that the principal having asked the plaintiff to wait until he went to New-Orleans to procure the money, and return with it and pay him, the plaintiffconsented.

The jury do not appear to have considered this as outweighing the plaintiff’s denegation, in his answers to the interrogatories. He had never intimated an intention to sue the principal. On the contrary, he had even denied it, and every part of his conduct shows that he looked to the sureties for payment.

The judge’s refusal to grant a new trial, shows he was satisfied that justice did not require his interference with the verdict. It does not, in our opinion, authorize ours.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, as far as it relates to the defendant Martin, be affirmed, with costs.