North British Mercantile Insurance v. Patterson

5 La. App. 327, 1927 La. App. LEXIS 6

• Court: Louisiana Court of Appeal
• Decided: January 7, 1927
• Status: Published

Opinion

MOUTON, J.

Patterson and Shirley entered into a contract with plaintiff company for.the issuance of policies on a commission basis. The contract is signed in the firm name of Patterson and Shirley, and individually by Nye Patterson and W. D. Shirley. Judgment was rendered against Patterson and Shirley, Nye Patterson and W. D. Shirley. Patterson made no defense. Shirley appeals.

The only question presented on appeal is as to whether appellant is liable in solido.

In the contract upon which plaintiff sues Patterson and Shirley obligated themselves to guarantee to the company the payment of all premiums they might collect or failed to collect within a certain specified period. It is clear that they bound themselves to do the same thing in the same contract, which was to turn over to the company all the premiums they might realize on the policies or failed to collect. The philosophy of the rule which, under such a contract, creates a solitary obligation is well stated in Jacobs vs. Williams, 12 R. 183, the leading case on this question, as follows:

“When several debtors bind themselves for the same debt, in the same contract, they create among themselves a kind of partnership as regards that debt; they mutually charge each other by a tacit, yet real proxy to pay it.”

Under a contract of that character the obligors are bound in solido, C. C. 2091; Teutonic National Bank vs. Wagner, 33 La. Ann. 732. If the defendants had obligated themselves in the instant case for distinct, independent or separate amounts, although in the same contract, a different rule would apply and the appellant could be held jointly, only. It is not so, however, as defendants were bound for the whole debt in the same contract which binds Shirley to a solidary obligation as was decreed below..