Rogers v. Gibbs

Ludeling, C. J. In March, 1860, J. J. Wilder & Co. executed two promissory notes, each for $4407 0.9, payable respectively in twenty-four and thirty-six months after date, to the order of Rogers & Woodall; and at the same time Rogers & Gibbs and J. Gibbs wrote their names on the back of said notes. Rogers & Woodall, the payees, have never indorsed the notes. Jasper Gibbs is now sued by the payees as surety. The defendant, without pleading to the merits, filed the plea of prescription against the notes. There was judgment in favor of the defendant, and the plaintiffs have appealed. The notes are prescribed unless there has been an interruption of the prescription by the citation served upon Hiram Gibbs, one of the firm of Rogers & Gibbs, on the fifth of February, 1867. And whether that citation interrupted the course of prescription as to Jasper Gibbs depends upon the character of the obligations which he and Rogers & Gibbs contracted by writing their names across the back of said notes. The defendant contends that he incurred the obligation of an indorser, while the plaintiffs insist that he is liable as a surety, and is solidarily bound with Rogers & Gibbs; and that the interruption of prescription as to one of several obligors in solido is an interruption as to all. More than a quarter of a century ago Chief Justice Eustis, as the organ of this court, said: “We consider that it is settled by the uniform jurisprudence of this State that when a person not a party to a note puts [468] his name on the hack of it he is presumed to hind himself as surety.” McGuire v. Bosworth, 1 An. 248 ; Penny v. Parham, 1 An. 275 ; Story on Promissory Notes, § 133, 134. And the same doctrine is affirmed in 4 An. 273, 9 An. 533, 20 An. 348, 22 An. 41 ; see also Cooley v. Laurence, 4 M. 639 ; 3 N. S. 659, 10 La. 374, 14 La. 386, 4 R. 161, 2 An. 592. The; same doctrine is held in other States of the Union. In Tenny v. Prince, 4 Pickering 385, Chief Justice Parker said : “ The principle by which our decisions have been regulated, from the case of Joselyn v. Ames downward, is that when the indorsement is made at the time of making the note, the person indorsing the note is to be treated as an original promisor; and this because he is supposed to have parted with something valuable on the strength of the liability of the party who puts his name on the note; and as such party can not be answerable as an indorser, lie shall be answerable as an original promisor.” See also 11 Mass. 436, 3 Mass. 274, 12 Mass. 14, 4 Pick. 311, 22 Howard 341, Rey v. Simpson, Story on Promissory Notes, § 470. Were they, as sureties, bound in solido, in the sense of article 2072 of the Civil Code ? “ There is an obligation in soKdo on the part of. the debtors when they are all obliged to the same thing, so that each may be compelled for the whole thing, and when the payment which is' made by one of them exonerates the others toward the creditors.” C. C., art. 2091. It is manifest in this case that each obligor was bound to discharge the whole debt due to the plaintiff, and that the payment by one would exonerate the others toward the creditors. It would seem, therefore, that the defendant comes clearly within the definition of a debtor in solido. The defendant’s counsel have relied upon the cases of Jacobs v. Williams, 12 R. 184, and succession of Yoorhees, 21 An. 659, to show that the liability of the defendant is not that of a debtor in solido, and that the citation served on Rogers & Gibbs did not interrupt prescription as to Jasper Gibbs. In the case of Jacobs v. Williams it is decided that the maker and indorsers of a note are not debtors in solido in the sense and meaning of the Code; and that “ the payee, or whoever may have lent Ms name to the maker or drawer, could not be permitted to recover from either more than he had paid ; but that as to all other parties who come after the payee on the bill, the lex mereatoria was to apply and to govern their rights and obligations. In the case of Williams the suit was brought by Jacobs, the holder of a note drawn by James D. Spurlock to the order of Williams, and by Williams indorsed in blank — a totally different state of facts from those shown in this case. In the case of succession of Yoorhees, 21 An. 660, what was said in regard to sureties not being bound m soKdo was an obiter dictum and [469] not binding as authority. The question there was whether prescription of a bond had been interrupted by the acknowledgment of one who had bound himself to pay a debt in default of Yoorhees, and the proof was that more than five years had elapsed after the last acknowledgment of the debt by the guarantor or surety. Nor is it logical to say that because article 3553 (3518) declares that “ a citation served on the principal debtor, or his acknowledgment, interrupts the prescription on the part of the surety,” therefore the acknowledgment of the surety does, not interrupt prescription as to the principal. There may be obligations where the sureties have lim-^ ited their liabilities and have not bound themselves in sólido; and the article above referred to would make the acknowledgment of the principal in such an obligation interrupt the prescription as to his sureties, although not bound in solido. Toullier says : “ Cependant Part. 2021 du Code porte quo l’engagefnent de celui qui c’est, en qualité de caution, obligé solidairement . avec le débiteur,' se régle par les principes établis pour les dettes solidaires.” Yol., 6, No. 723, 753. In giving his views,as to the reasons why the Roman law gave to the acknowledgment of one of several debtors in solido the effect of interrupting prescription as to the others, Toullier says: “ On la trouve dans la nature méme de Pobligation solidaire, et cette raison nous parait clairement indiqué© dans la loi méme, qui porte qu’il est équitable, hurnamm, que la reconnaissance ou Pinterruption d’une dette cróée par un seul et méme contrat, wno eod&mque contractu, oblige également tous les débiteurs a payer la dette parce qu’elle procede de la méme source. “ En effet, lorsque plusieurs débiteurs s’obligent solidairement par un seul et méme contrat ¡tune seule et méme dette, ils se mettent par cela méme en société pour ce qui concerne cette dette, ils se chargent mutuellement par un mandat tacite, mais i éel, de payer les uns pour les autres. ou, comme porte la disposition finale de Particle 1216, ils sont cautions les uns des autres. Celui des débiteurs qui paie seul pour tous les autres agit done tant pour lui que pour chacun de ceux dont il paie la part. S’il reeonnait seul la dette, il la reconnaít' également, tant en son propre nom que dans celui de ces eodóbiteurs, en vertu de leur mandat tacite ; enfin, en agissant contre un seul, le eréancier agit contre le mandataire de tous, contre la caution de tous : Pinterruption doit done pToduire son effet contre tons.” Yol. 6, No. 729, p. 757. Article 3045 (3014) C. C. declares: “ The obligation of the surety toward the creditor is to pay him in case the debtor should not himself satisfy the debt; and the property of such debtor is to be previously discussed or seized, unless the security should have renounced the plea of discussion, or should be bound in solido jointly with the [470] debtor, in which case the effects of bis engagement are to be regulated by the same principles which have been established for debtors m solido.” 4 An. 273. The plea of prescription should have been overruled. It is therefore ordered that the judgment of the court a qua be annulled, that the exception be overruled, and that the cause be remanded to be tried on the merits. It is further ordered that the appellee pay costs of this appeal.