169 So. 267 | La. Ct. App. | 1936
Plaintiff and defendant, Forrest E. George, entered into a written agreement whereby the latter agreed to purchase and sell, within the territorial limits described in the agreement, goods and manufactured products of the former. To insure payment of the price of all goods, wares, and merchandise sold on open account to and purchased by George under said contract, the other defendants, W.T. Harris, C.L. Gentry, and Arch Gentry, signed a guaranty, printed at the foot of the agreement, in which they "jointly, severally and unconditionally promise, agree and guarantee to pay for said goods and other articles (mentioned in the contract), and the prepaid transportation charges thereon, at the time and place and in the manner in said agreement provided." Total purchases by George under the contract amounted to $1,203.65, the last of which was made in July, 1930. Payments on the account aggregate $333.14, the last one being made in July, 1930.
In this suit, filed July 22, 1935, plaintiff seeks to recover judgment in solido against George and his three guarantors or sureties for the balance of $870.51 due on the account, with interest from judicial demand. The itemized account sued on is attached to and made part of the petition.
The guarantor defendants filed a plea of prescription of three years in bar. The plea was sustained and the suit dismissed. Plaintiff has appealed.
Appellant's position is that the suit is not on open account, but on the contract of guaranty signed by the exceptors, and therefore the prescription applicable to open accounts is not pertinent; that the account was simply attached to the petition to prove the extent of the guarantors' liability under the contract. *268
It is clear that the suit against George is on an open account. The suit against the guarantors is predicated upon the obligations assumed by them when they affixed their signatures to the contract of guaranty. The measure of their liability, if any, is limited to, but coextensive with that of George. If he is not bound for the amount sued for, neither are the guarantors bound therefor.
Under article
In Isador Bush Wine Liquor Company v. Leopold Wolff, 48 La.Ann. 918, 19 So. 765, it was held: "An agreement to extend a line of credit, for a certain amount, coupled with a stipulation for the payment of all goods purchased, bind surety for a general balance of account."
Article
In keeping with the permissive letter of this article, the Supreme Court in Gilbert v. Meriam, 2 La.Ann. 160, held that a surety may plead prescription against a debt for which he is sought to be held; and in Hunter Stewart v. Levis Bros., 42 La.Ann. 37, 6 So. 898, a plea of payment was interposed by the surety and upheld; and in Satterfield v. Compton et al., 6 Rob. 120, the usurious character of the obligation sued on was allowed to be gone into by the surety; and in Leckie v. Scott et al.,
"The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety."
Article
In the present case, plaintiff's own delay and inaction have made it possible for prescription to run against the account. All it has to assign to the sureties, should they be forced to pay off, is an account not enforceable against the debtor. This being true, the sureties may not be held.
This suit is primarily on an open account. The sureties were subject to be sued with the debtor because they signed a contract to answer for him in the event of his default. Their responsibility is only secondary; his, primary. Without a balance due on the account, the conditions of the suretyship may not be availed of, and without an enforceable liability against the debtor, measured by the account, the sureties cannot be held for any amount under the contract executed by them. W.T. Rawleigh Co. v. Thrasher et al. (La.App.)
The judgment appealed from is correct, and it is hereby affirmed, with costs. *269