Continental Ins. Co. v. Prevost , 1934 La. App. LEXIS 711 ( 1934 )

I agree with the majority of the court that if the liability of Dr. Watkins is to be judged solely under the terms of the bond sued on he is not liable, but I think he has made himself liable by an agreement which he signed with James Prevost and Continental Insurance Company. The document bears a December, 1930, date, but the day is left blank. It stipulates as follows:

"Whereas on the 8th day of November 1930 the Continental Insurance Co filed suit against James Prevost and Dr J Lester Watkins in the 22nd Judicial District Court for the Parish of StTammany for the sum of $724.90 together with interest and costs and Whereas the said James Prevost and Dr J Lester Watkins have recognized their liability in said suit and desire to make monthly payments for the amount due. Now therefore it is agreed between the parties hereto as follows."

The subsequent part of the agreement mainly has reference to notes which James Prevost signed with Harry Prevost as indorser and to the rights of the parties in case the notes are not paid. The balance of the agreement is not copied due to its length, etc.

Dr. Watkins, defendant, questioned about this document, said:

"Q. Dr. Watkins in this (counsel reads document to witness), Whereas the said James Prevost and Dr. J. Lester Watkins have recognized their liability in said suit and desire to make monthly payments on the amount due * * *, do you remember having that read to you? A. I guess so. I don't remember.

"Q. This clearly recognizes your liability in the suit, does it not? A. According to that document."

The plaintiff did not sue on this document but offered it in evidence in rebuttal of the claim of Dr. Watkins that he was not liable for the amount claimed of him. Defendant Watkins objected on the ground that it extended the time, etc., and discharged the surety on the bond. This objection would be a defense under Civil Code, art. 3063, in certain cases, but was untenable under the terms of the article. It was not objected to as a compromise. The objection urged against it only can be regarded in acting on its admissibility. Mitchell v. D'Armond, 30 La. Ann. 396, and many others to the same effect could be cited. I think the agreement amounts to a confession under the Civil Code, art. 2289, against which no claim of error, mistake, or fraud is urged. It has the effect of a law between the parties in the matter of liability. Civil Code articles 1901, 1945, and 1963. On account of this agreement, I think there should be judgment in favor of the plaintiff as prayed for.