Mayor of Shreveport v. Gooch , 15 La. Ann. 474 ( 1860 )

Merrick C. J.

This case is correctly stated by appellants’ counsel as follows :

“ On the 21th October, 1858, the defendant, John L. Gooch, drew a draft to his own order for §606 82, due at six months, on his co-defendants, B. L. Hodge and H. S. Howell, and they having accepted it, Gooch indorsed it to plaintiffs. On the 20th September, 1859, Hodge paid ¡¡5315 48, and on the 24th day of November, 1859, plaintiffs brought suit for the balance against the drawer Gooch, and the acceptors, Hodge and Howell, alleging their liability In solido. None of the defendants filed an answer, and judgment was rendered for the amount of the draft, less the above credit, against them all in solido, in the court below, from which Hodge alone appeals.”

He contends that he was only bound jointly with Howell for the payment of the draft, and that having paid his virile share of the debt, the judgment against him is erroneous.

The counsel for the appellee admits that obligations are never presumed to be in solido, but he supposes that the case must be governed by the commercial law and that the acceptors under that law are jointly and severally bound to the holder.

The Commercial Code was never adopted by the Legislature, and the general principles of the Civil Code in regard to joint obligations and obligations in solido have been so often applied to promissory notes and bills of exchange, that the question of their applicability to commercial paper is no longer open.

The Civil Code, Art. 2088, declares that “An obligation in solido is not presumed ; it must be expressly stipulated. This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provision of law.”

We are not aware of any provision of law which exempts acceptors from the operation of the rule. They are not strictly speaking depositaries, and their acceptance is an absolute engagement to pay a sum of money to the holder, whether they have or have not funds of the drawee in their hands. As the makers of a promissory note, the drawers of a bill of exchange, and the payees of a promissory note upon their endorsements, are only bound jointly, we think there is no safe ground upon which acceptances can be exempted from the operation of the rule. See Bank of Louisiana v. Sterling, 2 La. 62; Mayor v. Ripley, 5 La. 122; Cooper v. Polk, 2 An. 158; Bagget v. Rightor, 4 Rob. 18.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed as to said appellant, and that there be judgment in favor of the said appellant, B. L. Hodge, and against the plaintiffs’ demand, with costs of both courts.