Gosserand v. Lacour

Slidell, J. On the face of the note we consider Madame Gondran and J. B. Decuir hound as sureties in solido. / Wo are of opinion that the District Judge did not err in excluding parole evidence of the declarations of Decuir, made at the time of his signing the note, but out of the presence of Madame Gondran, as to what he supposed was the nature of his obligation. /k It is undisputed that Gosserand, the holder of the note, gave time to Madame Gondran; and the question arises .whether this agreement affected, and if so, io what extent, the liability of her co-surety Decuir, and his heir Mrs. Lejeune. By the Article 3032 of the Code of 1825, it is said, the prolongation of the term granted to the principal debtor, without the consent of the surety, operates a 'discharge of the latter. It is argued for the plaintiff that this article does not in terms cover the case of time given to a co-surety. This is true. But we consider its spirit applica [76] ble to the present question, especially when we revert to the pre-existing law, and the reasons suggested by the jurisconsults who prepared the amended Code, which is the law of this contract. In the Code of 1808, under the head “Extinctions of Suretyship,” is the following Article. “ The simple prorogation of the term granted by the creditor to the principal debtor, does not exonerate the surety, who may in this case suo the said debtor, to compel him to make payment.” In presenting the amendment which was adopted by Article 3032, above cited, the jurisconsults submitted to the legislature the following remarks. “ This is an innovation on the principles acknowledged by authors, and an entire change of the provision as it existed before, in which it is declared that a mere prorogation of the term granted to the debtor should not discharge the surety. It is proper, therefore, that we should state the reasons which have induced us to propose this amendment. “ JPothier, from whom principally the French Code has adopted a provision similar to that which we propose to abolish, gives as a reason for his opinion, that where the creditor accords the debtor a prorogation of the time, this does not prevent the surety from acting against the debtor, and providing for his indemnity, if he perceives that the fortune of the debtor is beginning to diminish. “ Notwithstanding the respect due to an authority of such weight, we do not think that this doctrine is in accordance with general principles, as applicable to matters of suretyship, nor that it is just to drive the surety to this recourse. The obligation which the surety contracts is to pay at the time fixed by the contract, if the debtor himself does not. This security is given for a limited time. When the time of performing the obligation arrives, the surety should have the right of insisting on the execution of the contract, that he may be discharged, or at least that he may be informed of the amount which he has to pay. To prolong his obligation beyond the term fixed, is to force him beyond his undertaking; to subject him to conditions to which he did not mean to submit. In fine, it is changing his contract.” See Amendments, p. 119. If we apply the spirit of these remarks and of the amendment to the case before us, how does the matter stand ? Mrs. Decuvr had a right, as surety, to bo subrogated to the rights of the plaintiff, under the original contract, against her co-surety to the extent of then-share of liability, which inter se her co-surety was bound to have. For being bound as sureties in solido, either, on paying the whole debt had a right to resort to the co-surety to reimburse one half. But if the appellant had paid the plaintiff the whole claim, and demanded a subrogation of the rights of the plaintiff against Madame Gondran, the plaintiff could not have given it. By his agreement ho was estopped from present suit. Thus the co-surety’s right under the contract had been changed, to the co-surety’s detriment, by the act of the creditors; and therefore, in our opinion, the co-surety’s liability was pro tanto discharged. We are of opinion, therefore, that the judgment against the appellant for the whole amount of the note and interest, was erroneous, and that the judgment should be reduced by one-half, being the amount of the share of the co-surety, Mrs. Gondran. It is, therefore, decreed that the judgment of the Court below against Mrs. Marga/ret Decuvr, wife of Ovid Lejeune, be reversed, and that the said plaintiff ■recover-of the said Man'ga/ret Decuvr the sum of $1771 BO, with interest there [77] on from the 3d April, 1850, until paid, at the rate of eight per cent., per annum and costs of the suit against her in the Court below, the costs of the appeal to be paid by the plaintiff. /