Watkins Co. v. Brown , 1928 La. App. LEXIS 427 ( 1928 )

MOUTON, J.

This suit is on a written contract against Brown as principal, Bond and Vernon, as sureties. The suit was dismissed on an exception of no cause of action. The suretyship was given for a further advance of goods to the principal, and an extension of time on an accrued debt of plaintiff company amounting to $1,372.00. This was a sufficient consideration for the guarantee. Peterson vs. Rabito, et al., 114 So. 354.

The exception relies mainly on the decision by this Court in the case of the same plaintiff company vs. Russell, and on the contention that the suretyship is null because it contains a potestative condition. In the Russell case the demand against the sureties was rejected because the contract had been made in violation of the Public Policy of the State, or of a prohibitory law. In the petition of plaintiff which must be taken as true, there is nothing to indicate that its demand is susceptible to such legal objections so as to authorize its dismissal under the exception. Such issues may become important factors on the merits, but are not pertinent to the present appeal.

In the contract signed by the sureties the right is given plaintiff company to terminate the contract at a date earlier than the time fixed for its expiration, but does not abrogate the obligation on which it rests. It simply gave plaintiff, at its option, the right to advance the time of payment, the principal and his sureties remaining bound, however, to pay the debt whatever the balance might be. This agreement was not null because affected with a ipotestative condition. Even if the agreement was vitiated by a potestative condition because the debt could be made, collectible at the will of the plaintiff company, it could not affect plaintiff, the obligor, and could apply only to defendants, obligees. Conques vs. Andurs et als., 162 La. 73, 110 So. 93. The exception was erroneously maintained.

It is therefore ordered and decreed that the judgment be avoided and reversed, that the exception he and is hereby overruled, and the case be remanded for trial according to law.