Miltenberger v. McGuire , 15 La. Ann. 486 ( 1860 )

Merrick, 0. J.

This suit was originally brought upon two promissory notes, amounting to $5000, against J. F. McGuire as principal, and John Atkins, W. H. Gayle and D. B. Trousdale, composing the commercial firm of Atkins, Gayle é Co. Judgment by default was made final against McGuire, the maker. Atkins died pending the suit, and his heirs were never cited. The case was tried as to Gayle and Trousdale, and judgment of nonsuit rendered in their tavor,"'and plaintiff appeals.

The defendants move to dismiss the appeal, because all the parties to the suit have not been made parties to the appeal.

The motion cannot prevail. The obligation of the maker of the note is not that of an endorser ; and the endorsers being commercial co-partners, are bound in solido, if bound at all. As the suit was tried in the absence of the other parties, so there can be no objection to the appeal in the same form.

On the merits, we find that Atkins, Gayle & Co. were indebted to A. Miltenberger <& Co. in a sum over $6000 ; that before the maturity of the notes sued on, they remitted the last mentioned with other notes, amounting in all to $8,638 98, to A. Miltenberger & Co., to be collected and applied to the extinguishment of said indebtedness, and the balance to be paid over to Atkins, Gayle <& Co. The two notes were not endorsed at the time they were forwarded, and they were subsequently endorsed in order to enable A. Miltenberger & Co. to collect the same. They were protested at maturity, and tlie suit, as already stated, was brought against maker and endorsers.

The only question presented is, whether Gayle and Trousdale are bound as endorsers. We think it is quite clear, that they are not so bonnd. Their firm never ceased to be the oivner of the notes. Miltenberger never credited it with any amount on account of the same, and the collection was at the risk of the former. It is thus seen, that A. Miltenberger & Co. were agents for the collection of the notes, and only bound to exercise due diligence in their agency. If they failed in the collection, it was tho loss of their principal; if they were successful, they accounted for what they received. The suit, then, in the name of Miltenberger, is in fact one. brought by their own agent, and is inconsistent with the idea of responsibility of Atkins, Gayle <fi Co. by an endorsement.

The defence in this case, is established, which distinguishes the same from the ease of McCarty v. Montet, 6 La. 21. In that case, the note was delivered in payment of a preexisting debt.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, with costs.