Gauthier v. Scott - 327 So. 2d 702 (La. Ct. App. 1976)

Rule:

La. Civ. Code Ann. art. 2104 provides that if one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each. If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment.

Facts:

Plaintiff sought recovery of sums he paid as an alleged co-debtor with defendant, on a promissory note executed by them as co-makers, and as co-sureties on a debt of a small corporation in which they were mutually interested. The trial court found that plaintiff was entitled to contribution from defendant of one half on the amount paid on the note, and of one-third of the amount on the guaranty. Defendant appealed, contending that that trial court erred in considering a specific provision of the continuing guaranty not filed in evidence, and contending that La. Civ. Code Ann. art. 3058 should have limited plaintiff's right of recovery.

Issue:

1. Did the trial court err in considering a provision of the continuing guaranty in question? 
2. Should the court have limited the plaintiff’s right of recovery? 

Answer:

1) No. 2) No.

Conclusion:

The court affirmed the judgment of the trial court, holding that the continuing guaranty was an exhibit filed in the record and was therefore properly before the court for al purposes under La. Code Civ. Proc. Ann. art. 853. The trial judge, thus, did not err in giving consideration to all its terms and provisions. The court further held that the trial court properly found defendant liable for one-third of the amount paid on the guaranty under La. Civ. Code Ann. art. 2104, in the absence of any evidence of the insolvency of the corporation.