Scharfe v. Noble

67 Miss. 143 | Miss. | 1889

Cooper, J.,

delivered- the opinion of the court.

Conceding to the laws of Louisiana full scope in the control of the contract entered into by the partnership of which appellee was a member, the real point in controversy remains to be settled by the laws of this state. Whatever effect the instrument executed by the firm had to bind the appellee-remains still operative against him, without reference to the suit in Wilkinson county in which a dismissal was entered as to him, and judgment for the whole sum taken against Trager, his partner. By our statute, code, § 1134, a judgment against one or more, joint or several, or joint and several obligors, does not preclude a resort to others against whom no judgment has been rendered. Nothing but payment discharges the obligation. It may be that appellants have recovered judgment against Trager for a greater sum than they were entitled to have from him, but of this appellee, who has not paid what they are entitled to have from him, can not complain. If Trager has paid the whole debt, that-would be a good defense, but the judgment is neither satisfaction nor a merger of -the claim against appellee.

The judgment is reversed, the demurrer to the plea sustained, and cause remanded.