| La. | Oct 15, 1847
The judgment of- the court was pyopoiinced by
The petitioners allege that they are the holders of a note in their favor, made by Charles A. Sewall & Co. in liquidation, dated in May, 1841, and payable at ninety days after date, with interest at ten per cent from the 10th June then next, given for a debt due by Seioall 8f Co. to the petitioners; that, on the 12th January, 1841, the partners of that firm, Sewall and Williamson, dissolved their partnership, and that, by a written instrument dated on that day, Sewall, as principal, and Gilmer, as surety, bound themselves to pay all the debts and liabilities of the firm, and to save Williamson harmless from them; the consideration of which obligation was that Williamson had transferred to Sewall all his interest in the partnership assets. Judgment is accordingly prayed for against the defendants as principal and surety, for the amount of the note and interest, after allowing certain credits. Gilmer answered by a general denial, and also pleaded specially that, if he ever was liable as surety, he had been discharged by the plaintiffs’ having given time to the principal. He also pleaded novation since the contract of suretyship was entered into by him. There was judgment for the plaintiffs for the amount of the note and interest, after allow* anee of certain payments, and the defendant Gilmer has appealed.'
It appears that the note, which forms, together with the obligation of suretyship, the basis of this action, was given by Sewall in settlement of ah open account due by Sewall & Co., before the dissolution, to the plaintiffs. The note bears date after the dissolution and the defendants obligation, and there is no testimony to show, that the other partner, Williamson, ever conferred any authority upon Sewall to bind the firm by note after the dissolution, nor any approval of the new arrangement, either by Williamson or by Gilmer.
The question is thus presented, whether the taking of the note, payable ata future day, with ten per cent interest for an indebtedness theretofore existing in the form of an open account, has discharged Gilmer. The plaintiffs contend that the obligation which Gilmer executed, contains a stipulation pour autrui, to the benefit of which they are entitled, under articles 1884 of the Civil Code, and 35 of the Code of Practice. If this be conceded, they then stand as though they were parties to that agreement; in other words, as though, on the 12th January, 1841, Sewall, as principal, and Gilmer, as surety, had promissed the plaintiffs to pay them the balance of the open account due by Sewall & Co. But the surety is discharged when, by the creditor, the subrogation to his rights, mortgages, and privileges, can no longer be operated in favor of the surety.” Civil Code, 3030 ; see also 3032. Here time was given by the plaintiffs to Sewall, without the consent of Gilmer; and, even if the obligation executed by Gilmer was one of which the plaintiffs could have availed themselves, they have discharged him by their own act. See the case of Mouton v. Noble, 1 Ann. Rep. p. 192.
It is therefore decreed that the judgment rendered against the said David Gilmer be reversed, and that there be judgment in his favor, with costs in both .courts.