
    NO. 7377
    J. M. Couget vs Steve Dasaro.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIMIQH

St. Paul, Judge.

The Heirs of Romaguera leased certain property to one Leonard, # who furnished his notes for the rent.

Leonard in turn leased to Couget,.the consideration being that the latter should pay the aforesaid rent notes to the acquittance and discharge of Leonard.

Couget then leased to Lasaro, the consideration again being that Lasaro should pay the aforesaid rent notes in the plaoe and stead of Couget.

All.three leases bore that failure to pay any one note should mature- them all, and stipulated for 10$ attorneys fees in oase of suit.

Lasaro failed to pay; and thereupon Couget sded for the whole amount of the rent and took out this provisional seizure.

As plaintiff failed to allege (or even to prove on the trial) that at the time this suit was ttüt brought, he (plaintiff) was the holder_of the aforesaid rent notes, or that he had paid them, defendant filed a defense based partly, and an exception of no cause of action based wholly^ on these grounds.

In as much as defendant might indeed assert, with some show of reason, that if he paid the rent to Couget he might be oalled upon to pay it a second time to the holder of the notes, we are not prepared to hold such a plea, or even an appeal pursuant thereof, to be frivolous, nevertheless, for reasons which we sill . presently point out, the defended# and plea are not well founded.

But first of all let us observe that the Heirs of Romaguera, who appear to have been the holders of said, notes at the time this suit was filed, have appeared in answer to defendant's appeal and have asked bjr their answer in this court that the judgment in favor of plaintiff be affirmed.

As this turn of affairs has completely eliminatsd any possibility of defendant being called upon to pay the claim a seoond time, we might (as to that phase of the matter) stop right here, if it did not raise the question whether defendant should be condemned for the costs of all these proceedings. On that head it behooves us to show that plaintiff had a right to institute this suit even in face of such a possibility.

11.

Row in the last analysis, Leonard merely assigned his lease to Couget, and, in.turn_C.ouget assigned to Darsaro». aü-'Wte-'frioe, # ^obtairied their-own release from liability upon the rent notes, it is clear- that neither would had any interest in this suit or in the subject matter thereof.

But as they did not obtain such release the consequence was that, as between Leonard and Couget, the latter became the principal debtor and the former remained of necessity a surity for Couget, oa*it is the same as to Couget and Dasaro; as between themselves Dasaro, who occupied the premises and agreed to pay for the», is , the principal debtor and Couget is only his surity.

Of course as to Romaguera they were all liable in solido; but/^ 1 in the very nature of things two persons cannot, as between them- r selves, be both liable as principals for the whole of one and the same debt. If the debt concerns them both (i.e. if it be for their joint benifit) they are, between themselves, jointly liable, C. C‘ 2103; and if the debt concern only one of them ( i. e. if one of them has received the whole benefit) that one is the principal ■e debtor and the other is only his suiHty, C. C. 2106. /

In plain words, Couget has no interest in this suit merely because he leased to Darsaro and Parsaro has not paid Romaguera. His Interest arises solely because of his own liability towards Romaguera and PararOi’s promise to discharge that liability in his stead. That is to say his interest is that of a surhfy and not that of a landlord.

Wow the güila — >§-*a—e-aamo-fea." fc-sy »U^» ......;-.hj oy )»-= — fina»»' ti: 0l*> Sia^?¿C ejj <3-o¿¿jyy^ ya -.4r-“ " n*tir>q against the principal debter unless and until he has first paid the debt (32 Cyc 244-245, and note 13).

But under the regime of our,Code the surity, even without having pAid the debt, has a right of action against the principal debtor to be indemnified by the latter, as.soon as the debt matures, Dickey vs Rogers, 7 N. S. 588.

Thompson vs Wilson, 13 La 108.

Mudd vs Rogers, 10 An 648.

Edwards vs Prather, 22 An 371.

Plaintiff had therefore the right•to institute this suit when he did even though he may not have paid the notes at the time.

111.

Defendant alleged and attempted to prove that he suffered certain damages by reasons of leaks in the roof which Romaguers had promised but failed to repair.

She trial judge refused to hear evidence on that issue, and properly so. Whatever we may think of the soundness of the proposité ion in itself, it is nevertheless the well.settled jurisprudence of this State, that when the'lessor fails, neglects or refuses to make the repairs,due by him, the lessee.must make them himself and deduct . the amount from the rent; and failing to do so he has no claim against his lessor for the ensuing damages.

Lewis vs Pepin, 33 An 1417.

Welham vs Lingham, 28 An 903.

Winn vs. Spearing, 26 An 384.

Diggs vs Maury, 23 An 59.

Pesant vs Heart, 22 An 292.

Westermeier vs Street, 21 An 714.

Scudder vs Paulding, 4 Rob. 428.

And besides, hs was.said in lewis vs Pepin, the undertaking of defendant (in the lease between plaintiff and himself) to keep the premises in good #### repair relelvedthe plaintiff from the-obligation which the law would otherwise have imposed on him of making repairs to the roof.

New Orleans, La, June 28 1918.

# as to- Hornaguera, and his promise, the judgment reserves defendant's rights if any he has for damages.

IT.

The appellee asks damages for a frivolous appeal. As we have said, we do not consider the appeal frivolous, though the judgmental oorreot.

Judgment Affirmed.  