Faures v. Coincon

15 La. 436

• Court: Supreme Court of Louisiana
• Decided: May 15, 1840
• Status: Published

Opinion

Simon, J.,

delivered the opinion of the court.

This is a suit on a promissory note. On the day fixed for the trial, the defendant, who had originally joined issue by admitting his signature, asked leave to amend his answer, in order to set up that since the case had been put at issue, the plaintiff had agreed to grant him the delay of eighteen, twenty-four and thirty-six months, to pay the debt. The amendment was permitted by the court, and the plaintiff took his bill of exceptions. There was judgment as in case of non-suit, and for costs, against the plaintiff; from which judgment he appealed.

On the trial of the suit, the defendant produced a document signed by plaintiff, purporting to be a general consent, given by defendant’s creditors, to grant him a certain delay to pay his debts. It says: Nous soussignés, créanciers de la mai&on Coingon fy Cié., fyc., consentons et par le présent nous engageons 'a accorder au dit sieur F. X. Coingon, fyc. It contains a list of the names of numerous creditors, and of the amounts due them respectively, and appears to have been drawn for the purpose of getting all the creditors, therein named, to sign it, and grant a voluntary respite. Four creditors, only, have signed the instrument, and among them the plaintiff, who consented, conditionally, and “en cas qu’aucun des créanciers ci-contre mentionnés ait un privilege avant une créance.'”

A contract or agreement, which has never been perfected, and not having been adhered to and signed hy all the contemplated parties, is not binding on those who have signed.

It seems, to us, clear that the contract has never been perfected, and that having not been adhered to and signed by all the contemplated parties, it is not binding on those who have signed it. 3 Martin, 326; 5 Martin, 677; 4 Louisiana Reports, 553. The creditors who have not signed the agreement, would be left at liberty to enforce their rights'; and were we to decide that the contract is obligatory on the plaintiff, the condition under which he gave his consent would become vain and ineffectual, as the other creditors, by being allowed to proceed against the debtor, would certainly have the means of obtaining an advantage, or a preference over the plaintiff.

Had the contract been binding upon the plaintiff, we are not ready to say that he could not have proceeded to judgment in order to liquidate his claim, and that its effect ought not to be understood beyond a mere stay of execution during the time agreed on, provided the debtor faithfully complied with his obligations.

Under this view of the question, it becomes unnecessary to examine the bill of exceptions.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Commercial Court be annulled, avoided and reversed; and this court, proceeding to give such judgment as ought to have been rendered in the lower court, it is ordered, adjudged and decreed, that the plaintiff do recover of the defendant the sum of three hundred and nine dollars, with five per cent, interest per annum from the 15th of December, 1839, until paid, costs of protest, and costs in both SUltS.