Rovira v. Martel

MOUTON, J. Defendant executed his promissory note for $600.00 in favor of plaintiff, May 5, 192'6, made payable August 1st, 1926. For the purpose of securing the payment of that note he gave plaintiff, as collateral security, a mortgage note which matured on its face on May 14, 1926. Plaintiff brought this suit against defendant on the collateral mortgage note in June, 1926, prior to August 1st, 1926, the date fixed for the maturity of the original obligation. In his answer defendant raised the issue of prematurity against the enforcement of the demand, which plaintiff contends he waived, claiming that this plea should have been urged in limine. The debt which defendant obligated himself to (pay was represented by the note which became due August 1st, 1926. If -the suit had been brought on that debt the question of prematurity would have been presented, and plaintiff could have been required to bring his action in due time. C. P. 158. This rule does not, however, apply to the suit of the plaintiff which is to enforce a collateral security with which the demand complies as to the maturity of that obligation. The exception urged in the answer of defendant is really one of no right of action. In support of his contention that he could bring this suit on the collateral [241] mortgage note prior to the maturity of the principal obligation, plaintiff relies mainly on Article 3170, Civil Code. Article 3170 reads: “Collection of claims pledged. If the credit which has been given in pledge becomes due before it is redeemed by the person pawning it, the creditor, by virtue of the transfer which has been made to him, shall be justified in receiving the amount, and in taking measures to recover it. When received, he must apply it to the payment of the debt due to himself, and restore the surplus, should there be any, to the person from whom he held it in pledge.” The defendant in this case gave his note to plaintiff for $600.00, and made it payable. on August 1st, 1926. The date of payment was unquestionably an important consideration in the contract for defendant, the borrower, also for plaintiff, the lendor. For the borrower it is quite frequently the most important condition for the party who contracts the loan. A written contract is presumed to express the intention of the parties, and it is the law of the case between them. Ker vs. Everhad, 4 La. Ann. 15, 6 South 566; Succession of Bellande, 42 La. Ann., 7 South. 535; C. C. 1945. Article C. C. 1901 says: “Agreements legally entered into have the effect of laws on those who have formed them. They can not be revoked, unless by mutual consent or for causes, etc. They must be performed with good faith.” Not only does the Article say that they become a law between the parties, and can not be revoked, unless by mutual consent, but that they must be performed in good faith. In the instant case the time for the payment of the note, which was fixed for August 1st, 1926, became a law between the parties for the enforcement of the obligation. The agreement as to this time limit could not be revoked except by the mutual consent of the parties. It could not be advanced or extended except in that way. In pledging the mortgage note there is not a single fact or circumstance to indicate that defendant had the slightest intention of changing or advancing the time of payment that had been fixed for August 1st, 1926, in the original note. Under the provisions of Article C. C. 1901, this term of payment could be changed or revoked only by the mutual consent of the parties. It is very evident that plaintiff was willing to a change in the contract which would effect an advancement in the time of payment but it is manifest that defendant never gave his consent to such a modification of the contract. Plaintiff contends that the pledging of the mortgage note gave him the right to proceed against defendant prior to the maturity of the principal note under Article 3170, Civil Code. We. do not believe that the Article was ever intended to provide for a case presenting the issue involved herein. The Article says, the pledgee shall be justified in receiving the amount of the pledged security, “and in taking measures to recover it.” Such measures referred to in that Article, we do not think, were ever intended to authorize the pledgee to enter suit on a collateral security for the enforcement of payment thereon in satisfaction of a debt or note of the pledgor payable at a date posterior to that of the collateral security. As to third parties, there can be no doubt, that the pledgee could sue at the maturity of the collateral security, but in such a case his demand would not come in conflict with the time of payment of the pledgor’s obligation. Let us say, however, that the rule embodied in Article 3170 was intended to apply to a pledgor situated as the present defendant, as well as to third parties. The record is barren of any proof, as we have before stated, to show that the defendant [242] ever consented to change the date of payment of the original note. This time of payment remained the law between the parties under their contract. The mortgage note was undoubtedly handed over to plaintiff to secure the performance of the principal obligation, that is, the payment at the time stipulated. Can it be said, with any show of reason, that the simple delivery of the collateral security which was exigible at an earlier date, could confer on plaintiff the power under that Article of the Code to enforce the auxiliary obligation prior to the maturity of the principal obligation. Such a construction of the law would be investing the accessory with the virtue of modifying the principal contract it was merely intended to secure. In other words, a strained construction of Article 3170 as to pledged credits would be used to defeat a right, not only grounded in equity, but on law under the provisions of Article 1901, Civil Code. We do not think that the provisions of Article 3170 can be invoked for the purpose stated, and that plaintiff can enforce payment on the collateral note prior to the maturity of the principal obligation. The judgment appealed from is therefore avoided and reversed; the exception of defendant is maintained and the demand of the plaintiff is dismissed as in case of non-suit, and at his cost in both Courts.