Coco v. Lacour

Portee, J., delivered the opinion of the court. The plaintiff held two notes on the succession of the defendant, Lacour’s husband; one had been endorsed and transferred to him by a certain Gauthier; of the other, he was the payee. After the death of the obligor, she was appointed tutrix to his minor children, and assumed the administration of the estate. While acting in that capacity, she took up the two notes already mentioned, and gave in' lieu of them, that on which this suit is brought; the codefendant, Rabelais, signed as surety. To this action the defendants plead that there was a want of consideration for the instrument on which the plaintiffnow seeks to recover. That the note to Gauthier was given for a balance supposed to be due to him, when in truth none was owing. That the other was also without consideration; and that the plaintiff was well acquainted with the transactions which caused the obligation to be executed in favor of Gauthier. The suit was commenced in March term, 1830, and at the October term of 1831, the defendants as the cause was about to be called for trial, presented certain interrogatories on which they required the judge’s order that the plaintiff answer them. They were objected to as coming too late, and as irrelevant. The court sustained the objection, and the defendants excepted. We think the court did not err. The law requires interrogatories to be annexed to the petition, or answer, as the case may be. No doubt they may be filed [511] after with leave of the court, on a proper case shown. But ’ 1 r whether viewed as an amendment to the pleadings or as an application to procure evidence, it is too late to present them at the moment the cause is about to be tried, without showing some reason why they were not offered sooner, and supporting the allegation by affidavit in the ordinary way. It is obvious , that a right such as is set up here would enable a defendant to obtain a continuance in all cases where delay was an object. Nothing more would be necessary than- to refrain ° ° from propounding interrogatories, of the materiality of which he was a long time previously aware. No proof is offered here to take the case out of the general rule. It is not shown the plaintiff was present, and if he had seen the interrogateríes were of such a description that an immediate reply could not have been given; for they called for answers which must have required an examination of accounts. if the maker °j[a new note with another surety and takes up cannot,°wheu called on for payment,enter into the original consideration, because he has by his actinducedthe holder to surrender the right which he had against the endorser, who was responsible on the original instrument. The surrender of that security is a good consideration for the new obligation. [511] The case has been principally argued on the responsibility of the defendants for the note which had been executed by the deceased in favor of Gauthier and by him assigned and transferred to the plaintiff. It has been contended the plaintiff well knew the consideration on which it was given when he received it, and that a subsequent settlement and partition between the heirs of the deceased and the wife of Gauthier shows it was executed in error. Admitting all this, it does not follow the plaintiff is not entitled to recover. A note may be taken with the knowledge of the consideration which passed between the maker and payee, and subject to the chance of payment being disputed by the former. In such case the party receiving it may consent to run the risk of the dispute, with the conviction that he has in any event his recourse against the endorser. And that recourse is in no respect affected by the knowledge that the maker may contest his responsibility. If, afterwards, the maker gives to the holder a new note, with another security, and takes up the old one, he cannot, when called on for payment, enter into r . the original consideration, because he has by his act induced the holder to surrender the right which he had against the [512] endorser, who was responsible to him on the original instrument. The surrender of that security was a good consideration for the new obligation. An attempt has been made to take the case out of the principle just stated, on the ground that this petition alleges the new note was taken as additional security for the debt due by the estate of Lamoine. It is clear this allegation refers to the effect which the instrument was to have in relation to the original obligor, and such may have been the understanding of the parties. But in respect to the endorser, not a doubt can exist that an agreement between the endorsee and a third party, by which a new note was taken and that surrendered on which the endorser’s name stood, was an extinguishment of the endorsee’s recourse against the endorser. 1 Mar. N. S. 618. This opinion renders it unnecessary to notice the bill of exceptions taken to the opinion of the court refusing the defendants’ permission to give evidence relative to the consideration of the note surrendered up. The remaining question in the cause relates to a claim setup by the defendants to have discussion of the estate of Lemoine for that portion of the obligation which was given for the debt due directly from it to the plaintiff. They found this demand principally on the allegation contained in the petition, which has been already noticed, that the present nóte was given as án additional security. The facts of the case show that although the security was additional, it was by an agreement independent of the contract it was intended to secure. The obligation to pay is distinct from the original debt. It is positive and unconditional, and there can be no question that even considering the defendants as sureties, they cannot claim the right of discussion, because sureties may bind themselves in solido with the principal, or make an independent obligation by which the right of discussion is abandoned. This opinion dispenses with the necessity of examining the third bill of exceptions relative to the propriety and legality [513] of receiving parole evidence in relation to the insolvency of Lemome’s estate. It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.