Washburn v. Norden , 28 La. Ann. 768 ( 1876 )

Ludeling, C. J.

This suit is on two notes executed by the defendant, Van Norden. The defense is the same which he made in the ease of Benner vs. W. Van Norden, decided last year, and for the reasons therein stated the judgment should be annulled. The defense of E. 0. Palmer is the same as that made by Van Norden to the note, if he be bound on it; brit he urges that his guarantee was made on condition that the evidence of it should not be produced, except in case of the death of said Palmer or of Armstrong. The written instrument is as follows:

“New ObleaNS, June 10,1873.

“ Whereas Mr. W. Van Norden has given his two notes for $2500 each, dated this date, respectively at seven and eight months, to his own order and by him indorsed, now, in order to secure the holder of these notes and as a guarantee for their payment, I hold myself personally responsible to the holder of said notes for their prompt payment at maturity. It is understood that this agreement is confidential between Mr. Johnson Armstrong, representing all parties, and Mi’. E. C. Palmer, and it is not to be used, except in case of death of Mr. Palmer or Mr. Armstrong, and if used before that contingency, is null and void. E. C. PALMER.”

It is contended that, as this document has been produced in evidence against E. C. Palmer before the death of himself or Armstrong the obligation is null. It is evident that unless the document could be produced in evidence in court, the guarantee could not have been proved, as the promise to pay the debt of another can not be proved by parol. Nor was this guarantee to take effect only at the death of one of the parties named, for he bound himself “ for their prompt payment at maturity’ The evident intention of the parties was, that the fact that the guarantee had been given, should be kept secret from all but the parties and Mr. Armstrong, who was to hold the said instrument, as the representative of all parties, until the maturity of the notes. If Palmer then kept his promise, the obligation would be surrendered to him; otherwise, it would be used against him to compel him to perform his obligation. Any other construction of this instrument would make it nugatory.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.