Clerc Co. v. Kron

2 Teiss. 187, 1905 La. App. LEXIS 35

• Court: Louisiana Court of Appeal
• Decided: March 20, 1905
• Docket: No. 3635
• Status: Published

Opinion

DUFOUR, J.

This suit seeks to recover of E. G. Kro'n, ;as guarantor, a balance of account due by Kron and Roggenkamp for goods furnished the latter by the plaintiff.

One of the defences presented both by exception and by answer is that, so far as the guarantor is concerned, the plaintiff has no legal right of action a'nd no rights under or by virtue of the agreement of guaranty.

The document evidencing the guarantee bears date of December 2nd, 1501, and the Obligation it incurs is in favor of “Clerc Bros. & 'Co., Ltd.,” a corporation doing business under a charter of date March 1st, 1899.

The plaintiff is doing business Under a name different from the foregoing, and under a charter adopted in January, 1902, subsequent to the agreement.

One charter is not an amendment of the other; they are distinct and separate, as are, in law, the respective entities which they create. ' ■

March 20th, 1905. Rehearing refused April 3rd, 1905.

The record is barren of any reasons why a contract made in favor of one corporation should be enforceable by another.

It may be that the surety, by his conduct, or otherwise, with full knowledge of all surrounding circumstances, has made himself liable to the plaintiff, but the record does not show this and it is not our province to indicate, in advance, what acts would bind him, and what kind of proof would be competent.

In the interest of justice, the case should be remanded.

Judgment appealed from reversed, and cause remanded to allow plaintiff to prove by competent evidence that it has the right to sue guarantor on the agreement of guaranty, the testimony in the record to remain without being re-offered, costs of appeal to be paid by plaintiff and those of the lower court to await the final determination of the cause.