Phillips v. Pedarre

5 Pelt. 741

• Court: Louisiana Court of Appeal
• Decided: November 27, 1922
• Docket: No. 8345
• Status: Published

Opinion

MUMFORD BHILLIPS AMD The'Globe Indemnity Company Vs. Hy R.Pedarra,Appellant.

Mo.8345

This ia a suit against a surety on a conventional bond.

The petitioners herein Mumford Philips and the Globe Indemnity Co .^represent that in a suit entitled United States ex rel S.Geisenberger vs Friedler and O.A.Gibson Mo.6737 of the U.S.District Court for the Southern District of Mississipi there was tendered on May 1918 a Judgment in favor of plaintiff for the use of Mumford Philips and also for the use Qf Lambert Bros, against Henry R.Pedarra for §2872.79^,of which §1415.07 was for the use of said Lambert Bothers^and for costs §47.93;that the Blobe Indemnity Company was subrogated to the rights of said Lambert Brothers In said suit and Judgment;that the said'judgment is subject to a credit of. §700.00 and they pray for a judgment in favor of the Globe Indemnity Company for §1416.07 subject to a credit of §700 on March 6th¿1918 with five per cent jg £/' y ¿3 per annum Interest from May 6"1918 for costs with five per cent N / interest from May 6th 1918.

For answer defendant -admitted that the judgment mentioned in the petition had been rendered but averred that at the time of its rendition the same Lambert Bros had obtained a judgment against Gibson Hamilton Company and the Globe Indemnity Company in suit Mo.115582 of the Civil District Court and Mo.7167 of the Court of Appeal on November 26"1917,and that said judgment had been paid;that said payment had released Pedarre from all liability;defendant specially averred that^not being satisfied with himself and Baker Stewart as sureties on the bond of Gibson Hamilton Co.the said Lambert Brothers A»*- ¿3c¿UCs ¡ required a-new surety á»3«£e bond,which was furnished in the person of the Globe Indemnity Company.

There was Judgment for the plaintiff and defendant has appealed.

The facts of this case are as follows»

In September 1915, the United States entered into a contract with Gibson Hamilton and Co.to build a certain levee} they furnished bond in the sum of $12,600 with Henry R.Pedarre and Baker Stewart as sureties,conditioned for the full payment of all persons supplying them with labor or materials in the building of said levee;that after said contract had been made the said Gibson Hamilton made a subcontract with Lambert Bros, by which the former hired from the latter a number of mule_ teams to assist in the building of said leges;and in order to secure the performance of this contract and the payment of Lambert Brothers of the hire o£ said mules^the said Gibson, Hamilton and Oo.furnished another bond in favor of Lambert Bros for $4,000 signed by the Globe Indemnity Company.After Lambert had completed his work,he obtained Judgment in the Civil District Court on June 26th 1917 and in the Court of Appeal on November 26th 1917 for $1267.25 against Gibson,Hamilton and Co.and the Globe Indemnity Co.In September 1917 suit was filed by the United States under the No.6737 of the U.S. District Court of Mississlpi,against the Gibson Hamilton Co. and all other parties interested in the bond of $12,600 By them furnished and against Henry H.Pedarre and Baker Stewart sureties on said bond.Lambert Brothers intervened in said suit claiming $1267.26 being the amount raaflissd by them by Judjjaent of the Civil District Court^affinned by the Court of Appell ^ ¿t-gainst Gibspn Hamilton and the Globe Indemnity Company.

On February 4th 1919 Lambert Brothers signed the following duoument t

Lambert Beca Vs. Gibson Hamilton Co. No. Civil District Court Parish of Orleans.Div. and Globe Indemnity Co.Of New York in solido.

" Receipt is hereby acknowledged by Lambert Brothers^ plaintiffs in the above numbered and entitled cause,from the Globe Indemnity Company of Hew fork of the sum of §1461.41 being amount due Lambert Brothers under judgment of the Civil District Court in the above entitled and numbered matter,as amended by the Court of Appeal,with interest and oosts.Shia payment id made by the Globe Indemnity Co. as Bursty for Gibson Hamilton and Company.Lambert Brothers hereby expressly redog-niaes and confirms the right of subrogation of the Globe Indemnity Company in and to all rights,claims,liens,and privileges against Gibson Hamilton and Company,the principal debtors of said Lambert Brothers,including particularly the rights,claims liens and privileges of said Lambert Brothers against Messrs Baker Stewart and Henry Pedarre,sureties upon the bond executed in favor of the United States by Gibson Hamilton and Company to secure the performance of the levee contract upon and under which the claim of Lambert Bothers arose; and the Globe Indemnity Company íb hereby expressly subrogated without prejudice to any of its rights,to all the rights and claims of Lambert Brothers against said Stewart and the said Pedarre,as sejb up in the petition and intervention filed in the name and behalf of the said Lambert Brothers against the said Stewart and the said Pedarre in the United States District Court for the Southern District of Mississipi,at Jackson,under the number 6737 In testimony whereof,the said Lambert Brothers have hereunto arfixed their signatures and seal,in duplicate at the City of Hew Orleans on this 4th day of February 1918 in the presence of the undersigned witnesses.

Signed Lambert Bros.

Per John M.Lambert

Subsequently in May 1918,in the United States District Court in the above suit of the United States vs O.A.Gihson No.6737 Lambert Brothers obtained Judgment against Baker Stewart and Henry R.Pedarre for $1415.07

In the present suit the Globe Indemnity Company,one of the Plaintiffs herein,alleging the above receipt and subrogation by Lambert Brothers dated February 4th 191& copied above ^and the judgment of the United States Court^asks Ji&e judgment against the defendant Henry R.Pedarre for $141o.07 and for $47.95 ■¥9$§$“0* costs of Court as above stated.

It thus appears that Lambert Brothers received payment from the Globe Indemnity Company of $1461.4iybeing the amount of the judgment rendered in their favor by the Civil District Court^as amended by the Court of Appeal,against the Gibson Hamilton Company and the Globe Indemnity Company and subrogated them to all their rights against said defendants and Baker Stewart and Henry Pedarre.lt is true that the transferee of a claim in suit may prosecute the suit in the name of the trane-Sei^-or for the benefit of the transferee.2, La 501-8 R.261-7 A 95-111 La 1021-120 La 369.But in that case the transferee or subrogee is made a party plalntigf of reoord in the suit* the suit continues in the name of,original plaintiff for the benefit of the trans^eree^and the judgment is rendered in favor of the transferee.Ihis was not done in this case in the United States Court; but the judgment was rendered in favor of Lambert ¡^Brothers alorie'.Plaintiff’s claim therefore rests exclusively upon the legal or conventional subpcgation resulting -from the payment of the Lambert judgment iwiHm greater force than /«ry? n 7 the other ¿U Durantdn P.195 S.244-17 AJaurent 360/Artlcle 2161 (2157) of the Civil Code reads as follows ;

Subrogation takes place of right: 1 XX 2 XX 3 XX For the benefit of him who being bound with others or for others for the payment of the debt,had an interest in discharging it C.N.1251 -4 XX C.0.3058 (3027) "When several persons have been sureties for the same detgoxymd for the same debt the surety who has satisfied the dli**t,has his remedy against the other sureties in proportion to the share of each;but this remedy takes place only,when such person lias paid in consequence of a lawsuit instituted against him" C.N.SO35.

There were two bonds/one for $18,600 signed by Baker Stewart and Henry Pedarre in solido and the other v/as for $4000 signed by the Globe Indemnity Companyyboth bonds wére given for the same debtors Bibson Hamilton Company and for the same debt.

The defendant,however^«ontends that the payment by the Globe Indemnity Companyjsurety on the $4000 bond^did not entitle it to a subrogation against the sureties on the other bond. The authorities relied upon by the defendant 5 A 806-541 and 35 A 787 do^k not support his contention.

The'theory upon which one surety^who hás paid,may call upon his ^jcgurg^gr a contribution is that inured to hie benefit and discharge and that iw-should not - . enrich himsblf at the expense of his cosuret^C.C.1965.Troplong caution on Art.C.N.8033 - Pothier obL.446 -28 Laure: • s ti * /S' LAI S 418-421. _ % NX &Z/> /¿/S'. gU¿// > -28 Laureij^yf.2p9^,S. ^//S ) , X, . ., . _ 2. /_( J/ <c? o

Under the lavy Lambert could have sued Stewart and Pedarre on their bond and compelled them to pay his claim.Because Lambert selected the Globe Indemnity Company,the law will not permit it to be made the sole victim by Lambert .Article 3058 of out Code -ps*copied,ipelssimis verbis,from Code Napoleon art2033 »

In 5 426 Troplong says; " But against wafet sureties has the one who has paid recourseíHe has his recourse against all those who,like him,have lent their suretyship.lt matters not that this suretyship has hot bean given simultaneously;it matters not that they have been given hy septate and successive acts.Article 2053 is general it makes no distinction;reason besides asks none.7 Dallos Hep.Leg.P.587 S 289 -3 Laromhiere on ArE. 1251 P.355 S53 -— 3 3 p <3 2- 3 Sj —

9 Marcade ( Paul Pont ) on Article C.N. 2033 P.160 S.III “The recourse under article 2033 takes place against all the sureties bound for the payment of the same debt,and whatsoever may be the date of their respective engagemente.lt matters little that the sureties should have bound themselves at the same time,or before,or after the one who has paidjthat they bound themselves by one and the same act,or by successive and distinct aáftsi recourse takes place in all cases,the law making no distinction.Thus Peter binds himseli as surety this day for Paul after Joseph had already bound himself as his surety for the samé debt a year before.Peter payé Paul's debt under one of the cases mentioned in article 2032 j he may hold Joseph by virtue of Article 2033,jUBt as if he had bound himself conjointly with Joseph and by the same Act." 21 Baudry Lac.P.544 3 2. 2 -

Orí the other hand the plaintiff argues that, he may hold Pedarre liable for the whole debt.He relies upon the oase of Howe vs Frazer 2 R.424.In that case Howe sued Frazer for e slander,and had him arrested.

Frazer was released on a bond signed by Vandry.Howe obtained judgment in the District Court against Frazer for $500 . Frazer appealed with Walker as surety on his bond.The judgment was affirmed. In February 1840.^Howe issued a fi-fa and a áfapias r The Sheriff returned that he oould not find Frazer nor any property belonging to him.Howe then tóok a rule agaiafet Vfalk.r, the surety on the appeal bond,and obtained against him a judgment for $500 and costs.Howe afterwards took a rule against Vandry,the surety in the bail bond,and obtained a judgment against him also for $600,Howe then issued against Walker a fi-fa,whioh was returned satisfied by him.By thiB payment Walker beoame unquestionably subrogated to the rights of Howe against Frazer under the express provisions of Article C.0.2161 (2167 ) S3" For the benefit of him who,being bound with others or for others,for the payment of the debt,had an inetéreBt in discharging it."Afterwards " Walker took a rule on Vandry to show cause why.he should not be subrogated to the rights of the plaintiff (Howe ) against the latter ( Vandry) on the ground of his having ■paid paid the debt,and why a fi~fa should not be issued against him for the whole amount,which was made absolute on the 5rd of March From the Judgment mating the rule absolute,Vandry has appealed."

Vandry*s defense was two fold: 1st That by paying the amount of the Judgment the surety on the appeal bond was not subrogated to the rights of the plaintiff against the surety in the bail bond;and 2nd that he was not entitled to recover from the surety on the bail bond the whole amount of the Judg ment paid by him but only his proportion^one half.

The Supreme Court affirmed the Judgment on the ground that Vandry and Walker were bound for the same debt,and that Walker having been l^st bound " was induoed to undergo the a-responsibility becHuse the principal’s solv^tnoy was guarantied by the person who first bound himself for him."that is Vandry; and for that reason,Walker's Judgment against Vandry for the whole amount was affirmed.

The onlu, authority relied on by the Court for suoh' a •/. conclusion is Article C.C.2161 Í2157 ) and it does riot,oay-M«nt > r A. Ho other artiole of the code is quoted,nor any previous decision the Supreme Court^nor any 9pinion/of any other Court or comraen-tator^Nor $ave we mpt with any authority in the Civil or common law announcing the doctrine advanoed for the first and last time by crur Supreme Court in that case.It is in direct confliot with article C.C. 3068 (3027) hereinbefore quoted which provides.'

"When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt,has his remedy against the other sureties in proportion £o the share of each" •

The attention tfiTthe Supreme Court does not seem to have been carted to that Artiole 3058.But there never was any decision in any jurisdiction.hor any law anywhere that induced Walker f / to believe in such immunity.On the contrary^the lavr and the decisions told him,in plain language that,at best he oould / ¿ryü^i ' cai&y have recourse against his cosureties £6n their proportion.

If the declaim, of the Supreme Court was correct then in all oases where tifre were two or fcore sureties and payment was made by the first surety,he would haye^no recourse against the subsequent surety because.forsooth principals solvency was ' t1'-guarantted by the surety who signed before him.

Because the decision in the Howe case stands alone^ because it does not purport to interpret Article 3058^and because it announces a doctrine so much in conflict with that article and with the principles and theories,supporting it,and with the Jurisprudence in o/her slates^we do not consider that we are bound to follow it.We have to choose between the cleat and unambiguous law,as we read and understand it,and between an unguarded opinion of the Supreme Court which we consider in derogation of the law.We think our duty is to follow the article of the 0ode.

In Quaker Realty Co.vs Labasse 131 La 998 (1008 ) the Supreme Court quoted approvingly :

"A single decision is not necessarily binding" 11 Oye 746 " More than one decision " said Judge Martin in Smith vs Smith 13 La 441 " is required to settle the jurisprudence on any given point or question of law."We have ofterusaid" said this Court in Lagrange vs Barre " 11 Rob.302 " it requires more them one decision to establish a jurisprudence. "

" TJh rulerstare decisis" is entitled to great weight and respect,when there Stas been on a point of law a series of adjudications all to the same effectjbut when we are presented with a single decision,which we believe to have been unadvisedly made,it is incumbent on us to overrule it,if we entertain a different opinion on the question submitted".6 R 216-225-228-13 A 345.

Stewart and Pedarre had signed ^solidary bond for $12,600 ot\$.b to them for $6,300 each^andMgie Globe Indemnity Company for $4,000 making bond for the amount of $16,600.

It is therefore ordered that the judgment of the Dlatriet Court he amended jand it is noi^Crdered .that the Globe Indemnity Company do have and recover judgment against Henry H.Pedarre for ^6300 — ^16,000 JJis of §1415.07^ plus $47.93j( subject to a credit of $700 on March 6th 1918 ) with five per oent per annum interest from May 6th 1018 till paid,and for all costs of the District Court herein}the costs of appeal to he paid by, the Glohe Indemnity Oompnay and that as thus amended smefa-judgment / •*- F t be affirmed*

November 27th 1922.