Soulié v. Brown, Johnson & Co.

"Voorhies, J. The defendants were the holders of two protested promissory notes of Alexander Lesseps, an insolvent debtor. On the 18th of July, 1853, they received from the syndic of the creditors of the insolvent, the sum of $1589 22, as a dividend on account of said notes. On the 16th of May, 1854, the parties litigant entered into a written agreement, which, after stating the above facts, and that the balance due on said notes amounted to $3,714 18, contains the following clauses, to wit: “ And whereas Bernard Soulié, of this city, is desirous of paying the aforesaid balance still due on the said two promissory notes, and as being subrogated to the rights and privileges of the said firm of Brown, Johnson Co., as holders thereof: Now, therefore, the said Shepherd Brcrton, for and on behalf of the said firm, does, by these presents, consent and agree to receive payment of the said balances from the said Soulié, in yearly installments of eight hundred dollars on the first of March, but without prejudice to the rights of the said firm to collect and receive any further dividend, or dividends, which may be declared and paid by the syndic of the creditors of the said Lesseps, in the meantime and before the said Soulié shall have paid said balances in full, and moreover consenting and agreeing, that by the mere fact of the payment of any and every part and portion of the said balances by the said Soulié, he shall be subrogated pro tanto, to the rights and privileges of the said Brown, Johnson & Co.: provided, however, that he shall not exercise such rights or privileges until the said firm shall have received either from him or the syndic aforesaid, or both, the full amount of the said balances.” The record contains an admission, that the defendants purchased at the judicial sale of the property surrendered, a certain lot of ground with the improvements thereon erected, which had been for a number of years the homestead of the insolvent’s family ; that in consequence of the intervention of the plaintiff, the defendants consented to make a transfer of their adjudication for the benefit of said family. This, it would seem, was the motive or cause which gave rise to the agreement between these parties. It is contended by the plaintiff, that this contract is one of sale for a fixed price, to wit, $3,714 18, the balance then due and which he stipulated to pay, by installments, to the defendants, who bound themselves, on receiving such payment, to make him a transfer of their claim, with subrogation, against the insol [522] vent’s estate; and that he was consequently not bound for the payment of any interest on the installments thus stipulated to be paid by him. It must be obvious, that the contract between the parties cannot admit of any such construction. Indeed, the express stipulation for the payment, without prejudice to the rights of the defendants to the dividends, of “ said balances in full,” is utterly repugnant to the idea of a transfer of their claim to the plaintiff. The only right which the latter acquired under that agreement, was that of a conventional subrogation on the payment of the balances which he thus stipulated to pay to the defendants. A different construction would certainly not comport with the plain and obvious meaning of the language used in the act, that the plaintiff “ is desirous of paying the aforesaid balances still due on the said two promissory notes, and being subrogated to the rights and privileges of the said firm of Brown, Johnson & Co., as holders thereof.” The consent of the latter to receive payment “ in yearly installments of eight hundred dollars on the 1st of March,” can hardly be construed to mean the specific sum of $3,714 18. How could that sum be paid “ in yearly installments of eight hundred dollars on the 1st of March” ? But it must be obvious that the plaintiff, in order to be entitled to the right of subrogation, was bound, as a precedent condition, to pay “ the balances still due on the said two promissory notes.” The assumption to pay a subsisting obligation from which interest grows, necessarily implies the payment of such interest, although not stipulated eo nomine. 15 La. 434. There was no release or remission of the interest in this case; nor can it be implied from the terms of the contract. C. C. 2195. It is, therefore, ordered, that the judgment of the court below be avoided and reversed; and that there be judgment in favor of the defendants, dismissing the plaintiff’s demand at his costs in both courts.