32 La. Ann. 497 | La. | 1880
Lead Opinion
The opinion of the court was delivered by
This case was before us in April last on an exception of prescription.
In 1870, Francis T. Nicholls sold to defendant, Mrs. Suthon, one half of a plantation for $10,000, represented by her'four notes of $2500 each, falling due in 1871,1872,1873, and 1874, and secured by mortgage and vendor’s lien.
In 1871, Mrs. Suthon sold this property to F. W. Pike, who, as part
W. W. Pugh became owner of these notes, and in 1874 sued Pike on his assumpsit, and to foreclose the mortgages. Pike confessed judgment in favor of Pugh “ for the amount, and in manner and form as. prayed for in plaintiff’s petition, and consents that judgment be entered according to the prayer of said petition. A stay of execution to be given me, provided Mrs. Suthon consents thereto, for one third for one year, one third for two years,” etc.
It seems that Mrs. Suthon never gave, nor was called upon to give,, her consent to this stay of execution.
Subsequently Pugh transferred this judgment and the four notes to Gay & Co., who, in May, 1877, brought this suit, on the notes, against Mrs. Suthon, the maker. She plead by way of exception, prescription against the notes, which plea was sustained by the court below as to two of the notes, falling due in 1871 and 1872. Plaintiffs appealed, and that was the question before us last April. We affirmed that judgment. The question was whether the suit of Pugh vs. Pike, above referred to, interrupted prescription as to Mrs. Suthon. We held it did not, because sho was neither the surety of, nor debtor in solido with, Pike.
If Mrs. Suthon was either the one or the other, then the suit did-interrupt prescription. Strangely, not to say inconsistently' enough, her counsel now contend that she was the surety’ of Pike, and press us to-reconsider the opinion then rendered. In other words, when seeking to escape on the plea of prescription, she was not the surety. Having got the benefit of that plea, to the extent of one half her debt, we are now told that she was the surety. If there were no other or better reason,, that of estoppel would preclude her from maintaining such a proposition now.
But we have been led to reconsider our views on the question, and have been thereby confirmed in their correctness.
Under our Civil Code, suretyship is an accessory contract, and presupposes the existence of a principal obligation. C. C. (old) 8004.
It is also a consensual contract, as between the creditor and the surety. One may become security for a debt without the consent of the debtor, but not without that of the creditor. O. C. (old) 3007.
It follows, necessarily, from these elementary principles, that where-one is a principal obligor, he cannot without the consent of the creditor transform that principal obligation into the accessory one of suretyship. Defendant argues, no doubt correctly, that Mrs. Suthon, upon paying her notes in the hands of Pugh or Gay, would be legally subrogated to the original Nicholls’ mortgage held by them, and could invoke and enforce it against Pike.
Applying this test, it is manifest that Mrs. Suthon was not the surety of Pike. Pugh or Gay were under no obligation to discuss Pike’s property before resorting to her. They could have wholly disregarded Pike in the matter, and have proceeded against her personally or bypothe-carily, and she would have had none of the rights granted by articles 3014, 3017 of Civil Code.. As between her and the holder of her notes, she was not, therefore, the security of Pike, but a principal debtor. The contract of suretyship is one created and governed by the Civil Code, and we will follow that, whatever may be the rule at common law. But the citation from Brandt’s Law of Suretyship and Guarantee, p. 32, sec. 24, does not go to the extent claimed, since the author expressly limits its application to the case as between the assumer and assumee, i. e. as between Pike and Mrs. Suthon. He seems to think that because the latter would, up on payment to the creditor, be subrogated, that puts her in the position of “ any surety.” No doubt to that extent her rights are the same as a surety would have, but that does not make her a surety.
¥e held in our former opinion that Pike and Mrs. Suthon were not debtors in solido in the sense of the Code. Solidarity may be'perfect or imperfect. It is perfect, and the obligors are the mandataiies of each other, when by the same act, at the same time, they bind themselves to the performance of the same thing. It is imperfect (and they are not mandataries of each other) when they bind themselves to the same thing by different acts or at different times. See Marcadé, vol. 4, p. 509; also, 12 K. 183 ; 2 An. 332 and 792 ; 15 An. 168.
While, therefore, we think it clear that Mrs. Suthon was neither security of, nor co-obligor in solido with, Pike, still she was bound “with” him for this debt; and as Pike was, under his contract with her, the ultimate debtor, upon her paying the debt, she was entitled to a full
We take the rule to be that where two persons are bound to a third, for the same debt, and where one of these obligors has, upon payment of the debt, a right of subrogation thereto, and of recourse for the ¡amount paid, upon his co-obligor, any contract between the creditor and the ultimate debtor, whereby delay is granted,-or securities surrendered or diminished, will discharge the obligor entitled to such recourse and subrogation if his consent be not obtained. The creditor in such case must maintain a position which will enable, him to subrogate the party paying to all the original rights, privileges, and actions incident to the debt. See 1 B. 301 ; 9 An. 497 ; Bayley on Bills, 357; Story on Prom. Notes, 544 ; 3 B. 299.
Has Pugh or Gay, by any agreement of theirs, put it out of their power at any time to give to Mrs. Suthon this full subrogation and ■Bight of pursuit of Pike ? If so, she is discharged.
We.find nothing in the confession of judgment having that effect. "The stay of execution was expressly conditioned upon Mrs. Suthon’s •consent thereto, and was inoperative if she refused to consent.
. But we find Gay & Co. entering into contracts with Pike, which in •our opinion precluded them from enforcing the judgment and mortgage against Pike ; and which therefore deprived them of ability to subro-gate Mrs. Suthon to the full extent to which she was entitled.
On 19th day of May, 1877, Gay & Co. entered into a contract with Pike to furnish him money and supplies to enable him to cultivate and manufacture a crop of sugar on the mortgaged premises. The advance was to be of $750 per month, but not-to exceed in the aggregate for the year $10,500. These advances were to be made by Gay & Co. upon the following conditions, to wit: That said Pike shall cultivate the said plantation to the best advantage, so as to produce thereon a 'successful crop of sugar, etc.:; that as fast as the crop is ready for market, he will ship it to Gay & Co., of New Orleans, to be sold in the usual way ; that the proceeds of said crop should be first applied by Gay & Co. to the re-imbúrsement of their said advances, and any surplus over ¡that sum they were to apply to sundry other debts held by them against Pike, and among these is enumerated the debt now in question before
On 24th January, 1879, Pike leased the same plantation, for one. year, to Ed. J. Gay of the firm of Gay & Co. for the sum of $1000, for which Gay gave his note, and which note Pike agrees to deliver to Gay & Co. at once, as a credit on his debt to them.
During the continuance of either of these contracts, could Gay &, Oo. have foreclosed their mortgage and sold the place? They could not-have done so, without thereby forcing Pike to violate his contracts with them. They stipulated and Pike promised, that he would cultivate that, place during the year 1877, and that the proceeds of the crop should go. to the discharge of his debts to Gay & Oo., including that now sued on. By the contract of lease Gay stipulated and Pike promised, that the former should have the enjoyment of the place for one year. Under both contracts Pike was to be advantaged and'benefited to the extent his debts were paid. Gay & Oo. would. have violated both agreements by seizing and selling the property, thus rendering it impossible for. Pike to fulfill his engagements under either. We take it, that where a. party stipulates that another shall do a certain thing, he thereby impliedly promises that he will himself do nothing which may hinder or obstruct that other in doing that thing. Had Gay & Oo. attempted the seizure and sale of the place during the continuance of these contracts,. Pike would have had the undoubted right to enjoin them, as violating the implied obligations of their contracts.
If Gay & Oo. could not themselves have executed the judgment,, they could not by subrogation have conferred such right on Mrs..Suthom Nemo plus juris ad alienum transfers potest quam ipse habet.
We hold therefore that Mrs. Suthon has been discharged from liability to pay the two remaining notes, by the act of tlie creditor. ■
We think the court a qua did not err in permitting defendant to-amend her answer, and set up additional grounds of defense, as there was no inconsistency.
The judgment below was in favor of defendant. It is correct, and is affirmed with costs of both courts.
Rehearing
OR APPLICATION POE, Reheabing.
The opinion of the court was delivered by .
We held in our former opinion in this cause, that where two-persons are bound to a third for the same debt, and where one of these obligors has, upon payment of the debt, a right of subrogation thereto,, and of recourse, for the amount paid, upon his co-obligor, any contract between the creditor and this ultimate debtor, whereby delay is granted,, or securities are surrendered or diminished, will discharge the obligor
We do not understand the counsel for plaintiffs in his learned and able brief for rehearing to seriously question this proposition.
We understand him to maintain,
First — That Pike was not the debtor of Gay & Co., but of Mrs.. Suthon only ; that Gay & Co. were only the mandataries, with an interest to receive payment from Pike of what he owed Mrs. Suthon.
Second — That Gay & Oo. could not by any act of theirs in any manner affect, abridge, or hinder Mrs. Suthon’s recourse upon Pike upon her paying her note held by them.
We are unable to give our assent to either of these propositions. We think the first is in conflict with the provisions of the Oivil Code-relative to stipulations for the benefit of a third person. When Pike, in his contract. with Mrs. Suthon, to which Gay & Co. (or rather Pugh, their author) became party by their acceptance, assumed- and promised to pay Gay & Co. the notes of Mrs. Suthon, held by them, the legal-result was to give Gay & Co. another and additional debtor. When Gay & Co. accepted the stipulation, there was created a direct obligation from Pike to them to pay the notes, as much so as if Pike had actually added his signature to the notes themselves, or accepted a draft drawn on him by Mrs. Suthon for their amount. True, there was no novation of the debt. There was simply an additional obligor bound for it. It is true that in some sort Gay & Oo. may be said to have become the mandataries of Mrs. Suthon, but they had substantive rights of their own against Pike, growing out of his promise to pay notes hc-ld and owned by them. They were certainly his creditors, and a payment to them alone would extinguish the obligation contracted in their favor.. In Baldwin vs. Thompson, 6 La. 479, referred to by us in our former opinion, one Kohn sold to Baldwin, taking notes for the price. Baldwin sold to Green, who assumed and promised to pay Baldwin’s notes held by Kohn. This court held that “ in pursuance of the doctrine of stipulation pour autrui, Green became Kohn’s debtor, * * * for he expressly stipulated to pay to Kohn the debt which Baldwin owed.”
Second — We think the fundamental error of the second proposition, arises out of forgetfulness of the fact, that the notes held by Gay & Co. were secured by two mortgages, -to wit: one granted by Mrs. Suthon, to Gen. Nieliolls in her act of purchase from him, and one granted by Pike to Mrs. Suthon and Gay & Co. in his purchase from Mrs. Suthon..
Now will it be said that Gay& Co. were not the owners and masters ■of the Nicholls’ mortgage? If they had entered of record a full release thereof, could Mrs. Suthon on subsequently paying her notes have -enforced it against the property in Pike’s hands? Were they not also "the owners and masters of the notes held by them ? If they had extended their payment by Pike for five years, could Mrs. Suthon, subsequently taking them up, have enforced their payment at once against Pike ? It may be that Mrs. Suthon, on payment of the notes, could have enforced the mortgage which Pike granted her, any agreement between Gay & Pike to the contrary notwithstanding, because her rights •thereunder were original and not derivative. But it is manifest that Gay &’Co.’s act and contracts relative to the Nicholls’ mortgage would 'have been binding on her ; and as Gay & Co. were privy to the contract wherefrom resulted her right of subrogation to this mortgage and her right of recourse on Pike, they were bound to maintain such attitude with reference thereto as would enable them to give her, at all times, the subrogation and recourse she was entitled to. They entered into -contracts with Pike, the effect of which was to put this out of their power for about two years. They thereby discharged her.
Th.e rehearing is refused.
