
    No. 7631
    Court of Appeal — Parish of Orleans.
    The Texas Bank & Trust Company versus Jack Bokenfohr.
    Blnkelsplel - J.
   The issues presented, in this case are substantially as follows: Plaintiff in petition filed, a corporation established under the laws of the State of Texas, domiciled in Beaumont in said State, represents that Jack Bokenfohr, who resides in this Oity and Parish is indebted to petitioner in the full sum of $1655.34 with interest and attorney's fees, as more fully shown.

That petitioner was holder and owner of a certain promissory note made by Bokenfohr and Monahan, formerly a corporation established under the laws of the State of Texas, domiciled in Beaumont in said State, on,the SOth of May, 1915, payable to petitioner sixty days after date for the sum of $1950.00, with interest at the rate of 10 per cent per annum after maturity until paid, and in case said note is placed with an attorney for collection, an additional sum of 10 per cent on the aggregate of principal and interest as attorney's fees, and on which note was paid June 19, 1915, $50.00, July 32, 1915, $50.00, August 3, 1915, $68,00 and August 4, 1915, $135.00 and the interest on said note up to the 32nd of August, 1915, leaving due the sum of $1655.34, with interest and attorney's fees as heretofore reoited.

Petitioner further shows that the said corporation of Bokenfohr. and Monahan was adjudicated a bankrupt on the 4th of August, 1915, in the Beaumont Division of the United States District Court for the Southern Dis$riot of Texas and that said bankruptcy proceedings is there pending, no dividend as yet has been received, and small dividends expected.

to noi.tsro7ííP»tÍftisDn!erl;ffu»*jMlfr rapárasSrofcs'rcthiufct*6. the 4 th of Deo ember, 1911, the said Jack Bokenfohr gave to petitioner a guarantee readingas follows: "This is to state that we personally guarantee a loan of oredit of $3500.00 with you for Bokenfohr and Monahan in such amounts and made payable at such ti#es as suits their oonvenienoe, and this-is intended to take oare of renewals from time to time, overdrafts, and in fact any and everything appertaining to said firm's indebtedness with your bank." ííhioh said guarantee was signed by Bokenfohr and Monahan per W. F. Monahan and also by said Bokenfohr.

Petitioners allege further that they loaned to said Bokenfohr and Monahan .the sum of $1950.00 represented by the note hereinbefore described and annexed to this petition on the faith of said guarantee, also annexed hereto and made part hereof.

Petitioner shows further that on the 6th of July, 1914, the corporation of Bokenfohr and Monahan gave petitioner an additional guarantee reading as follows: "Texas Bank & Trust Company,

Beaumont, Texas.

"Gentlemen:

This is to state that we personally guarantee a loan with of oredit of f2500.00 it you for Bokenfohr and Monahan in such amounts and made payable as such time as suit their oonvenienoe. This is intended to take oare of renewals from time to time, overdrafts, and in fact any and everything pertaining to said firm's indebtedness with your bank."

"Yours truly,

(Signed) Bokenfohr & Monahan,

By W. F. Monahan, President.

V. F. Monahan,

Jack Bokenfohr."

Patitloner a alleging further, show that all of thee* transactions were had in the State of Texas and are governed by the laws of said State, under which principals and co-guarantors are liable jointly and severally and that 10 per oent interest oan he legally stipulated. Further represent that eaoh of said guarantees were given petitioners in response to a demand by petitioners made upon the said Jack Bokenfohr and that neither of them were offered by said Bokenfohr for petitioner to accept or reject, and that under the law of Texas, where a guarantee is given in compliance with a demand, therefore no acceptance thereof or notice of acoeptanoe of the guarantor is necessary to make the contract binding.

Also alleges amicable demand upon said Bokenfohr for the payment of §1655.34, with interest as aforesaid, his refusal to pay, and also the note had been plaoed in the hands of an attorney for oolleotion. Wherefore, they pray for citation s,nd judgment as above recited.

To this petition an exception was filed by the defendant asserting that plaintiff's demand is based upon two inconsistent demands. A demand upon an alleged contract dated December 4, 1911, and another alleged contract on the 6th of July, 1914; that said oontracts cannot both he maintained at the same time and that if either one is valid, the other is invalid and Inoperative, and plaintiff should be oompelled to eleot upon whiob of the said two causes of action it intends to rely and proceed, and until it has so ohosen defendant should be dispensed from further pleading. Aleo pleads that plaintiff's demand was premature and non-joinder of necessary parties defendant. Further that the petition discloses no cause of action.

The exceptions being overruled, defendant answered reserving the benefit of the exception, calling for striot proof of plaintiff's status. Denies the indebtedness, but does not deny signature,

Further answering, admits that Bokenfohr & Monahan wer e adjudicated bankrupts and were still in that position at the time the answer was filed. That said guarantee lapsed, expired, was canoelled and became null and void on the execution of the subsequent instrument which was filed by plaintiff with his aforesaid petition.

Also denies that plaintiff loaned to defendant $1,950.00 or any sum represented by the note described, or otherwise, on the faith of the so-called guarantee. That the instrument referred to was executed by Bokenfohr & Monahan, W, F. Monahan, and denies "that it was an additional guarantee stipulated or to be added to the so-called first guarantee executed on Deoember 4, 1911, which guarantee v/as cancelled and held for naught on the execution of the guarantee of the 6th of July, 1914, which guarantee wae given to secure a loan of future credit from the said plaintiff to Bokenfohr & Monahan, and that the bank violated its agreement, and to refuse after the execution of said guarantee to make the advances contracted for, to the great injury and damage of both Botoenfohr and Monahan, after Claiming further that Xt the execution of the guarantee of July 6, 1914, the said bank stopped the oredit of Bokenfohr & Monahan and appropriated all their deposita to the payment of the d#bt guaranteed by this contract though seme was not due, and choreby destroyed the oredit of Bokenfohr and Monahan and damaged them to the extent of §3600.00. Denies further al1 responsibility under the guarantee and prays finally tin/, plaintiff's suit be dismissed and for a judgment in his favor of §3500.00

A oareful reading of all the testimony in this case, together with letters from the bank to the defendant; the depositions of J. L. Cunningham, F. D. Minor, Jr,, E. P. Bennett, Caithier of the plaintiff corporation, and the correspondence annexed to the said depositions between the parties plaintiff and defendant, convlnoes us that defendant time and again admitted and acknowledged his indebtedness under the guarantee, and under no state of facts, as we view them, can he be discharged therefrom.

We have also read the testimony presented by the defendants Monahan and Bokenfohr, and after statement made and their acknowledgments time and again of the guarantee that existed and given by them, it is utterly impossible to aooept the testimony and the statements therein c ontalned as a release from the guarantee given.

An attempt has been made by oounsel to show another prinoipal, among other things, a contract of guarantee will not be binding without a oonslderation. Again a past transaction or existed consideration will not s support a contraot of guarantee. A benefit to the prinoipal debtor is a sufficient consideration. The obligation guarantee of a contract of guarantee must each have a legal consideration claiming that they were distinct contracts.

This Is not a now question. Under our jurisprudence our Supreme Court in the oase of Hibernia Bank & Trust Company to. Suooeesion of Canoienne, to be found in the 14kfl,La. syllabue at page 970. "When an instrument of guaranty has been signed by the guarantor at the request of the guarantee and delivered by the guarantor to the guarantee or to the prinoipal debtor to be by him delivered to the guarantee, the oontract of guaranty is completed by the guarantees acting upon it by advancing or loaning money to the prinoipal debtor on the faith of the guaranty, and the guarantor is not entitled to notice of acceptance of the guaranty from the guarantee."

"A continuing guaranty, whereby the guarantor binds himself for the payment of such debts as the party named in the instrument may incur from time to time, continues in force until it is revoked. The guarantor, under a .continuing guaranty, is not released from his liability by the.faot that the debt contracted on the faith of the guaranty was discharged and revived during the term of the guaranty."

And again: "Although the amount of the liability of the guarantor be limited, if the time be not expressly limited, the instrument is a continuing guaranty, to the amount for. which the liability of the guarantor is limited, if the language of the instrument shows that the purpose was to give a standing credit to the principal debtor to be used from time to time.

The contention, among other things, of the defendant is virtually the defense of novation, and Civil Code Art. 3190 provides: "Hot Presumed. Novation can be made only by persons oapable if contrae ting; it is not presumed; the intention to make it must dearly result from the terms of the agreement, or by a full discharge of the original debt,", and authoriities cited.

On this same question the case of the Farmers National Bank of Lebanon, Ky. vs. Bell Alliance Company, Ltd., is in.point, and the Court at page 531 of the 143nd La. goes on to say: "Executing a new note in renewal of an old one does not novate the original debt or destroy the privilege securing the same.", citing authorities.

The Century Dictionary in defining the word ."guaranty" amongst other definitions: "In law, to hind oneself, that aX the obligation of another shall be performed, or tha$ some tiling affecting the rights cf the person in whose favor the guaranty is made shall be done or shall occur. To guaranty a contract oran undertaking by another as to bind oneself that it shall he performed or carried out." Again; "Specifically in the law a separate independent contract by which a guarantor undertakes in writing for a valuable consideration to be answerable on the payment of some particular debt or future debts, or the performance cf come duty of another person primarily liable to pay cr -perform."

The contention, that nc credit was exteno'ed or forbearance ^ranted after the execution of the guaranty of 1814 is an error. There were renewals of loans numerous times. The note upon which this suit is based is dated «ay 30, 1S15, long after the date of the second guaranty, hence we conejee that a renewal of the note or ti.e extension of an obligation constitutes consideration under tne authorities and tne law cited.

Hie Honor the judge of the lower court in a well considered written opinion, after carefully going into the law and the evidence, ¡fame to the conclusion that it wh3 a valid legal obligation and we are of the same opinion.

Judgment affirmed.  