BONILLA, SYNDIC, &C. vs. MERLE ET AL., 9 La. 216

Mathews, delivered the opinion of the court. In this case the syndic of the creditors of Vidal, an insolvent, residing in the city of Havana, in the island of Cuba, sues to recover from the defendants one thousand nine hundred and eleven dollars and thirty-seven and a half cents, which he alleges they owe to the estate of the insolvent, as having been his debtors to that amount previous to his failure, &c.

They resist payment to, or a recovery by, the present plaintiff, on account of having assumed to pay this sum to one Magnin, at, the request, and in pursuance'of the order of1 Vidal, the latter having acknowledged himself to be indebted to this amount to the former. Judgment was rendered in favor of the plaintiff by the court below, from which the defendants appealed. The principal difficulty in the decision of the case, as it is presented to the court, arises out of the question, to which of the two, Vidal or Magnin, are the defendants legally obliged to pay the money in dispute.

They are clearly debtors to one or the other, according to evidence furnished by themselves in the exhibition of extracts from their book of accounts; but they cannot be debtors to both, on agreements or implied contracts relating to only one and the same debt, and if they are debtors to one of these persons alone, and he be Magnin, to whom they were requested to pay by Vidal, it must be on account of their assumpsit to the former having released them from, or suspended their obligation to the latter. The truth of this position depends upon the evidence of the case.

Most of the important facts are to be ascertained by the examination of a correspondence between the defendants and Vidal, and letters from Magnin to the latter and to the former. On the 12th of June, 1834, Vidal wrote from Havana to the defendants, (who, from the tenor of his letter, appear to have been his factors in New-Orleans) and states to them, that on liquidating accounts with Magnin, he owed him one tbousand nine hundred and eleven dollars and three rials, arid requested them to pay that sum to Magnin.

In the same letter* mention is made of certain bills of exchange and accounts which had been forwarded to them by one W. B. Smith, to be collected for the benefit of Vidal, on which he requests his agents to put him in cash by discounting them, &c. This letter contains no positive information of any particular funds of the writer in possession of his correspondents, out of which Magnin was to be paid.

In truth, it contains ' no expressions from which an implication can be drawn, that they were his debtors at that time; consequently, the order to pay Magnin must be viewed as a simple request on the part of Vidal, without any assignment of a debt due to the latter by the defendants, or indication of any particular fund out of which payment was to be made; and this appears to have been the understanding of Merle & Co. on this subject, for in their answer to Vidal, they inform him that they had agreed to' pay Magnin, when they should be put in funds by kis debtor.

The creditor, after this conditional promise made to him by the defendants, applied directly to Vidal for pay-J , , , ,, J , , r , ment, as appears by several letters addressed to that gentleman; and, about the same period, he requested Merle & Co. to transmit to him at' Liverpool the amount, of the debt, if it ghollld be remitted to them by Vidal. indudesaSnovation by the ex-debt due from gating^ancf tiré obligation contracted by the new debtor to the — oredl" Delegation containso^dou-where the person delegated is the debtor of the Satíní dThé hirSei/°ofC^his obligation to the anew obligation to the creditor.

Novation takes place both of the person dele-I^nlw^debtoi? and of the per-byümnew obik tracts to fee common creditor, According to these facts, the case assumes a greater . ° , “ similitude to what is termed, m our law, delegation, than to any other species of contract; it, perhaps, wants the entire rectuisites a complete delegation, as it does not appear that the persons delegated were debtors to the party delegating them, at the time of the delegation.

But if they assumed to pay on bis request, they stand in the same situation in L J J . relation to the creditor, as if they had really been indebted to the person delegating them. Before the adoption of our codes, the law in respect to novation predicated one in every case of delegation. In Pothier’s treaties on obligations, it is laid down as a rule on this subject, “ that a delegation includes a novation by an extinction of the debt from the person delegating, and the obligation contracted in his stead by the person delegated.

Usually, a delegation contains a double novation, for ordinarily, the person delegated is a debtor of the one delegating, and the former, to acquit himself of his obligation bo the latter, contracts, by his order, a new obligation to the creditor of the person delegating.

In this case, there is a novation both of the obligation of the person delegating, by giving to his creditor a new debtor, and of the person delegated, by the new obligation which he contracts.” If the person delegated be not debtor of liim delegating, still if he obligates himself to pay, he is bound, and cannot resist payment; only saving his recourse against the person delegating him.

So, wl\ere A requests B, his factor, to pay C one thousand nine hundred and eleven dollars, who replies he will when put in funds, and advises A he has promised C to do so, but the-latter not getting his money as soon asexpected, applied several times to A, his original debtor, to remit him the money, and does no act in the meantime to release B from his conditional promise to pay him: Held, that it was delegation of a new debtor from A to C, and B became absolutely bound on getting in funds. “ If the person delegated were not in truth the debtor of the person delegating him, still, if he enter into an engagement to pay, his obligation will not be less binding, and he cannot resist the payment of it, saving bis recourse against the person delegating him.” Pothier's obligations, Nos. 565 and 566.

It is, however, declared in the Louisiana Code,

article 2188, that “ the delegation by which a debtor gives to his creditor another debtor, who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the obligation.” This provision of the Code, from the very terms in which it is expressed, relates only to the novation which was operated by law previously in force, as between the original debtor and creditor, and does not touch that novation which formerly existed by effect of law, between the original debtor and the debtor delegated.

Merle & Co. did not assume to pay absolutely the debt of Vidal to Magnin; the assumpsit was on condition of getting into their hands funds of his debtor, to the amount requested to be paid. The evidence shows completely, that they had funds, and it does not appear that they have been released from their obligation to Magnin, (and the condition being performed they must be considered as-absolutely bound by their promise) by any act of him or Vidal, the original debtor, by making payment himself.

We say that Magnin did nothing to exonerate Merle' & Co., for his subsequent application to Vidal for payment, cannot be so construed as to have this effect, because, according to the

article of the code just cited in relation to these parties, there was no novation ; but, as we have already stated, it is impossible that the defendants can be considered as absolute debtors for the same debt, and at the same time to both Vidal and Magnin. They are, however, absolute debtors, by their promise; to the latter; therefore, they are not such to the former. , The creditor, by the promise of the person delegated, has two bound, to either of whom he may resort for payment. If the, original debtor makes payment, after delegating another, he will liavehisrecourse against the latter.

But until payment, his rights against the delegated debtor to the common creditor, is suspended. When B, the defendant, was put in funds, he became absolutely bound to C. He might have again become so to A, if it was shown the latter had paid C.

According to our laws as they now exist, although the novation which formerly took place between the debtor delegating, (creditor of the one delegated,) and this last is not expressly destroyed by the code; yet, as novation does not-result from the contract, as between the original debtor and creditor, by which the former is freed from his obligation to the latter, injustice might result by tolerating novation between the person delegating and the delegated, so as to extinguish absolutely and forever, the obligation of the latter to pay the former.

The creditor, by the promise of the person delegated, has two bound to him, to.either of whom he may resort for payment; and if his original debtor should make such payment after the delegation, he ought then to have recourse against the person delegated, his former, debtor.

But until such payment and extinguishment of the original obligation', his right to pursue the person once debtor to him alone, whoj by his orders, has bound himself to pay to another for him, must be suspended, or we shall fall into the absurdity of making the person delegated debtor to two for the same thing, and at the same time, and thus subject him to pay twice, which would be unjust. As the 'cause now appears, the defendants are' debtors, absolutely, to Magnin, and may again become so to Vidal, when it shall be shown that he has paid Magnin.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be .avoided, reversed and anulled, and it is further ordered, that judgment be here entered for the' defendants, as in case of non-suit, with costs in both courts.