Flintkote Co. v. Thomas
| Decision Date | 02 June 1969 |
| Docket Number | No. 3486,3486 |
| Citation | 223 So.2d 676 |
| Parties | The FLINTKOTE COMPANY v. Wilmer THOMAS et al. |
| Court | Court of Appeal of Louisiana — District of US |
Lee K. Levy, New Orleans, for plaintiff-appellee.
Montgomery, Barnett, Brown & Read, Henry J. Read, Harold B. Carter, Jr., New Orleans, for defendants-appellants.
Before BARNETTE, GARDINER and LeSUEUR, JJ.
The plaintiff, The Flintkote Company, Filed this suit against defendants Wilmer J. Thomas, Milton Bernos, Jr., and the Succession of Milton J. Bernos, Sr., through the executrix, Mrs. Odessa A. Bernos, who is the widow of Milton J. Bernos, Sr., seeking to recover from them jointly and in solido the sum of $13,492.01 representing the balance alleged to be due for merchandise sold and delivered by the plaintiff to Interstate Manufacturing Company, Incorporation, (hereinafter referred to as Interstate) for which it alleges the defendants executed a written guaranty for all sums then due or to become due to the plaintiff by Interstate.
Several exceptions were filed by defendants which were overruled. The executrix of the Succession of Milton J. Bernos, Sr., filed an answer and separate answers were also filed by Wilmer J. Thomas and Milton J. Bernos, Jr., in which they generally denied the allegations of plaintiff's petition and plead alternatively that should the continuing guaranty be found to be validly executed, there should be division of the surety obligation as provided by LSA-C.C. art. 3049 by which the liability of each defendant would be one-third of the total amount due.
Following a trial on the merits, the district court gave written reasons and rendered judgment in favor of the plaintiff and against the defendants for the full sum of $13,454.55 jointly and in solido, together with legal interest from judicial demand.
From that judgment only the executrix of the Succession of Milton J. Bernos, Sr., has appealed suspensively.
All parties stipulated that if judgment was rendered the amount owed is $13,454.55; that a continuing guaranty prepared by representatives of The Flinkote Company, was signed in Louisiana on February 8, 1966, by Milton J. Bernos, Sr., Milton J. Bernos, Jr., and Wilmer J. Thomas, as guarantors up to the amount of $15,000.00, which limitation was inserted in the document by Wilmer J. Thomas; and that the Louisiana law is to be applied in interpreting the guaranty.
The question for determination is whether the defendants are liable jointly each for his virile share, or whether their liability is in solido with each equally liable for the full amount the answer to which requires the interpretation of the provisions of the continuing guaranty.
The guaranty was executed by more than one person and there is no dispute that the obligation is 'joint and several.'
An obligation in solido on the part of the debtors exists when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment that is made by one of them, exonerates the others toward the creditors. An obligation in solido is never presumed, but must be expressly stipulated except in cases where an obligation in solido takes place of right by some provisions of the law. The creditor of an obligation contracted in solido may apply to anyone of the debtors he chooses without the debtors having the right to plead the benefit of division, and a suit brought against one of the debtors does not bar the creditor from bringing suit on the same account against the others. LSA-C.C. articles 2091, 2093, 2094, 2095.
The ultimate test of whether an obligor may be held for the whole or for only a proportionate part of the obligation is essentially whether the two obligors each promised the same or full performance or whether each promised only a different performance, that is to pay a proportionate part of the liability. Wilks v. Allstate Insurance Company, La.App., 195 So.2d 390; 4 Corbin on Contracts, sec. 925. When several persons obligate themselves to the obligee by the terms 'in solido' or use any other expressions which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation it is called an obligation in solido on the part of the obligors. Wilks v. Allstate Insurance Company, supra; LSA-C.C. art. 2082.
Several obligations are produced when what was promised by one of the obligors is not promised by the other, but each one promises separately for himself to do a distinct act; such obligations, although they may be contained in the same contract, are considered as much individual and distinct as if they had been in different contracts and made at different times. LSA-C.C. art. 2087. Nothing more is effected by such contracts than if each one of the obligors had entered...
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Transit Mgmt SE Louisiana v. Tenet Hlth Sys.
...is kept as separate and distinct as if each had made a different contract for himself on a different date. Flintkote Co. v. Thomas, 223 So.2d 676, 678 (La.App. 4th Cir. 1969). Additionally, joint liability obtains when the obligors are obligated for the same performance, but none is bound f......
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...62, 67 n. 2 (E.D.La.1969); Shreveport Bank & Trust Co. v. Tyler, 275 So.2d 451, 452 (La.App.2d Cir. 1973); Flintkote Co. v. Thomas, 223 So.2d 676 (La.App.4th Cir. 1969); Wilks v. Allstate Insurance Co., 195 So.2d 390 (La.App.3d Cir. 1967). For a discussion of the common law rule of joint an......
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USX Corp. v. Tanenbaum
...that such words as 'in solido ' or 'solidary' must appear in the contract in order to create solidary liability." Flintkote Co. v. Thomas, 223 So.2d 676, 679 (La.App.1969). Rather, a solidary obligation is created if the contract uses an expression which clearly shows an intent to be bound ......
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Katz v. Innovator of America, Inc.
...the plea of division will not benefit a surety if he has expressly bound himself in solido with another surety. Flintkote Company v. Thomas, 223 So.2d 676 (La.App. 4th Cir.1969). In the present case, appellant did raise the plea of division, timely. However, appellees claims that division o......