The opinion
Dissenting Opinion.
Watkins, J.
Various grounds have been assigned — which are pressed in argument, oral and printed — why we should grant a rehearing and change our decree; but,' as we are all of the opinion that all of them are groundless, with the exception of one, I will confine my argument to that one exclusively.
This suit is brought against Henry Block & Bro. on their indebtedness to plaintiffs on open account, aggregating something more than ten thousand dollars; and against 0. Lazard, on his written agree *518 ment to bind himself to them for ten thousand dollars, in favor of Henry Block & Bro.
This agreement is of the following tenor, viz.:
“ I hereby agree to become surety for Henry Block & Bro. for the sum of ten thousand dollars, jointly and severally with Henry Block & Bro. This agreement to bind me in the sum of ten thousand dollars, until the 15th of October, 1891.”
The two principal grounds of defence which are set up in the answer, and relied upon in argument, are:
(1) Want of notice by Lachman & Jacobi to Lazard of their acceptance of his agreement; and (2) fraud, on their part, in obtaining it.
Imprimis, these defences involve a manifest contradiction, that is utterly destructive of the defence, in this: If plaintiffs never accepted the defendant’s agreement, they could not have been, at the same time, guilty of fraud in obtaining it; and if they were guilty of fraud in procuring it, certainly notice of their acceptance would have been an unavailing ceremony.
These judicial admissions ought to be the end of the ease.
The only doubt there is in the minds of the members of this court, as to the correctness of our original opinion, is in relation to the plaintiffs’ notice to Lazard of their acceptance of his agreement.
The difficulty of solution arises chiefly from the difficulty there is in determining what the instrument of writing is — one of suretyship, guaranty, or a letter of credit.
In my opinion the agreement of Lazard is one of suretyship for the following reasons, viz.:
1. Because the recitals of the instrument declare that “ I hereby agree to become surety for Henry Block & Bro.”
2. In the brief of counsel in support of this application I find the following admission, viz.:
“ The contract on its face is a contract of suretyship, and the court holds it to be such.”
Again:
“ The court erred in holding that Lazard was not entitled to notice •from the plaintiffs of their acceptance of his alleged contract of suretyship.”
Again:
“The court erred in holding that the letter missive in this cause *519 to plaintiffs was not an offer to become a surety within the meaning of the law upon that subject.”
That these admissions were deliberately made is attested by the fact that the last two quotations are the headings of the two propo - sitions on which counsel mainly rely, and one of which I have under present consideration.
3. They are in strict keeping with the individual answer of Lazard in this suit, wherein he avers that, if he is in any way liable for the account sued on, Mayer Israel is a co-surety, and that he is entitled to the benefit of division, which he hereby claims;” or, in the alternative, “ the said Mayer Israel being a co-surety, he is entitled to recover against him judgment for one-half of the amount of the judgment rendered against him.” His prayer for judgment conforms to the foregoing allegations of his answer.
4. In the demand that the attorneys of Lachman & Jacobi made upon C. Lazard, under date October 7, 1891, they say inter alios that “we hereby notify you that the indebtedness of Messrs. Henry Block & Bro. to said Lachman & Jacobi, for which you are surety, under your letter of June 4,1891 ‘amounts to ten thousand and seventy-dollars and thirty-four cents. You are aware that attachments, far exceeding Henry Block & Bro.’s assets, have been levied upon them, and we demand immediate payment or we shall institute suit promptly.
“Yoursvery truly,
“Moise & Titche.”
There can be no doubt of the correctness of our opinion in so far as it affirmed that Lazard sustained toward the plaintiffs the relation of surety for Henry Block & Bro. Under the Code “ suretyship is an accessory promise by which a person binds himself for another already bound.” R. C. C. 3035. It is a personal and accessory promise in favor of a third person.
A mortgage is á contract of security for debt. R. C. C. 3278. So is a pledge a contract of security for debt. R. C. C. 3133. A mortgage is “ a species of pledge.” R. C. C. 3279.
All of these engagements are, in another article of the Oode, under the title “of conventional obligations,” placed in the same category, thus:
“ An accessory contract is made for assuring the performance of a *520 prior contract, either by the same parties or by others; such as sure-tyship, mortgage and pledge.” R. C. C. 1771.
As an agreement of suretyship, or accessory promise, notification of acceptance on the part of Lachman & Jacobi was altogether unnecessary to give it binding force on C. Lazard (1) because the law does not require such notice; and (2) because the terms of the agreement exclude the idea of notice of acceptance being required.
(a) There is nothing said, under the title “ of suretyship,” in the Code, of such notice being required, not even by implication.
This is just what we said in our original opinion; and, after making a quotation therefrom, counsel for applicant say in their brief:
“ True there is no text of the law to that effect, particularly and specially applicable to the contract of suretyship; but there are many texts to that effect which necessarily apply to all contracts, suretyship included.”
Counsel, in support of that proposition, cite quite a number of articles of the Code — 1768, 1779, 1797, 1798, 1800, 1803, 1804, 1809, 1810, 1819, 1997— all of them being found under the title of conventional obligations; and neither of thefti making mention of the notice of the acceptance of a contract of suretyship. '
This admission is an absolute surrender of the whole question; for it is elementary that the articles of the Code which are collated under any given title must be consulted in determining the essential elements of the contract which is therein specified. Wé may examine other articles and titles for the purpose of ascertaining the effect of an article under examination, but for such purpose only.
But, strange to say, counsel add — in the very next sentence to the one above quoted — that “suretyship is a commutative contract,” referring to R. C. C. 1768 under the title “ of conventional obligations.” And, in making that statement, seem to have overlooked thea almost immediately following Art. 1771, which declares that suretyship is an “accessory contract,” “such as mortgage or pledge.”
It must be borne in mind that the question is not as to Lachman & Jacobi’s consent to a contract, but as to their failure to give the surety notice of their acceptance of their agreement. This agreement is an accessory promise which C. Lazard executed in favor of Lachman & Jacobi ex gratia. The primary obligation is from Henry Block & Bro. to Lachman & Jacobi. It is therefore clear that the rules of *521 law governing commutative contracts are without application or analogy to the issue.
(6) The terms of Lazard’s agreement exclude the idea of Lachman & Jacobi giving notice of acceptance; because they are absolute and unconditional, and clearly import a binding agreement from and after date, for it says:
“I hereby agree to become surety for Henry Block & Bro. for the sum of ten thousand dollars jointly and severally with Henry Block & Bro. This agreement to bind me in the sum of ten thousand dollars until the 15th of October, 1891.”
Not only does 0. Lazard “ agree to become surety for Henry Block & Bro.,” but this agreement is made 11 jointly and severally with Henry Block & Bro.”
Nor is this all, for the foregoing is supplemented thus: ‘ 1 This agreement to bind me in the sum of ten thousand dollars until the 15th of October, 1891.” To bind him, when? Evidently from the date of the agreement. To bind him how? Jointly and severally with Henry Block & Bro. for their indebtedness to Lachman & Jacobi. What is the effect of such a promise of suretyship? Let us see what the Oode says under the title which treats “ of the effects of suretyship between the creditor and the surety,” with reference to this character of suretyship; and looking into the Oode on the subject we find the following, viz.:
“ The obligation of the surety toward the creditor is to pay him in case the debtor should not himself satisfy the debt; and the property of such debtor is to be previously discussed or seized, unless the surety should have renounced the plea of discussion, or should be bound in solido jointly with the debtor, in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors in solido.” R. C. C. 3045. (Our italics.)
Let us then examine the principles which have been established for debtors in solido, and thus ascertain what are the effects of 0. Lazard’s solidary engagement with Henry Block & Bro. in favor of Lachman & Jacobi.
A single reference will answer the purpose, for the provisions of R. C. C. 2094, to be found in the chapter which treats “ of the rules which govern obligations with respect to debtors in solido,” are: “ The creditor of an obligation contracted in solido may apply to any one of the debtors he pleases without the debtor’s having a right to plead the benefit of division.”
*522 Giving the same effect to Lazard’s solidary engagement of surety-ship, he is not entitled to urge the plea of discussion or divisionj and Lachman & Jacobi could apply to him first and alone to pay the debt of Henry Block & Bro., if they chose.
This is evidently true, and demonstrates that C. Lazara was not entitled to notice by Lachman & Jacobi of their acceptance of his solidary suretyship.
To arrive at this conclusion, this court would have to maintain the doctrine that the surety in solido on any conventional obligation would not be bound without the obligee’s formal notice of acceptance first given.
This is not true, of course.
But it is insisted that Lazard’s agreement is merely a mercantile letter of credit, and hence notice of acceptance is of its essence.
Let us examine this proposition.
Had Lazard’s engagement been restricted to the phrase “I hereby agree to become surety for Henry Block & Bro. for the sum of ten thousand dollars, ’ ’ and all that follows omitted, there might have been plaus - ibifity in the contention; but the remaining words of the sentence, “ jointly and severally with Henry Block & Bro.,” give it the character of a solidary engagement with the plaintiffs’ debtors, which the Code declares shall be “ regulated by the same principles which have-been established for debtors in solido ” R. C. C., 3045.
And the concluding sentence, “this agreement to hind me in the sum of ten thousand dollars, until the 15th of October, 1891,” even more clearly evidences the immediate and unconditional effect of Lazard’s engagement.
Words more potent could not have been chosen for the purpose-of showing that Lazard’s evident intention was to bind himself immediately and in any contingency.
His agreement is altogether different from the one that figured in the case of Menard vs. Scudder, 7 An. 385.
That was of the following tenor, viz:
“ Baton Rouge, December 4, 1849.
“I do recommend my friend, J. B. Scudder, of the parish of East Baton Rouge, a planter, and any funds he may raise, or acceptances, in case he does not pay, I bind myself to pay.
“James McCalop.”,
*523 Of that instrument the court express the opinion, viz.: “The common sense of this declaration is a promise to indemnify; a guarantee to those who might lend him money, or accept for him.” (Our italics.)
They also expressed the opinion that notice of its acceptance was necessary; but it is interesting and instructive to observe the grounds they put that opinion upon. They say:
“ For when the letter of guaranty is addressed to the public at-large; when it is a proposition, and to attach upon future transactions ; when it is unlimited in amount and indefinite in duration, and is, by its nature, subjeet to recall, it seems manifestly just that the guarantor should be entitled to notice of acceptance within a reasonable time from the person who undertakes to act upon its faith.”' (Our-italics.)
The agreement of Lazard is wholly different in every respect.
But if the agreement of Lazard be taken for a letter of credit, it is a foreign and not a domestic contract. It was drawn and signed in New Orleans, La., to have effect in San Francisco, Oal. It was addressed to Lachman & Jacobi, of San Francisco, by C. Lazard, of New Orleans. It was intended to form the basis of a line of credit the former were to give to Henry Block & Bro., as well as to secure their existing indebtedness.
The precept of our Code applicable to this kind of an engagement is this:
“But the effect of acts passed in one country to have effect in another country is regulated by the laws of the country where such acts are to have effect.” R. C. C. 10. In our jurisprudence this article has been frequently applied to similar engagements.
In Whiston vs. Stodder, 8 M. 135, it was held that “ a contract between persons separated from each other is consummated in and governed by the laws of the place where the final assent is given. So an order for goods from one in Louisiana on another in England is governed by the English law.” Shaw vs. Oakey, 3 R. 361 .
In Vidal vs. Thompson, 11 M. 23, it was held that “ the laws and usages of the place where the obligation is to be fulfilled must regulate its performance.”
In Zacharie vs. O’Beirne, 6 La. 402 , it was held that “ a mortgage given in one State, to secure advances to be made by a mortgagee. *524 in another State, being but inchoate, to take effect on the latter’s acceptance, is governed by the laws of his domicile.”
In Beirne vs. Patton, 17 La. 589 , it was held that “ the validity of a contract made in one place, tacitly, or expressly to be performed in another, depends upon the laws of the latter.”
But perhaps the strongest and clearest illustration of this principle of law is to be found in the recent ease of Claflin vs. Mayer, 41 An. 1048, in which a ease is stated in which “the completion of the contract, the acceptance of the price and conditions, depended entirely upon the non-resident creditors.” “When,” the court say, “the agent exhibited the samples under their restricted authority, and transmitted their orders to their principal, there was no obligation created which the buyer could enforce. When the proposal to purchase, as forwarded by the agent, was accepted by his principal, then there was a contract created which the buyer in New Orleans could enforce.”
Again:
“In the instant case there is no difference between the proposal to purchase forwarded by the agent, and one transmitted through the mail by the buyer. It is not doubted that purchases by order by the buyer himself become contracts of the place where the order is filled (our italics). Gates vs. Gaither, 46 An. 286; Succession of Larendon, 39 An. 952. (Italics by the J., dissenting.)
Unquestionably, Lazard’s engagement, considered as a letter of credit, is a California contract, the city of San Francisco being the place of acceptance, as well as the place where the orders of Henry Block & Bro. were to be thereunder filled.
But, in this view of the case, Lazard was entitled to no notice of acceptance, because the Civil Code of California provides that “ the writer of a letter of credit is liable for credit given upon it, without notice to him, unless its terms express or imply the necessity of giving notice.” Civil Code of California, Art. 2865.
The application of the law of the place of acceptance destroys this contention of the defendant, altogether.
But let me go a step further and consider Lazard’s agreement as a common law guaranty; and what is the result ?
On this proposition it is only necessary for us to consider one case —Davis vs. Wells, 104 U. S. 159— as it is conceded to be the leading case on that question. Its syllabus is as follows, viz.:
*525 “The rule requiring notice by the guarantee of his acceptance of the guaranty, and his intention to act under it, applies only when the instrument being, in legal effect, merely'an offer or proposal, such an acceptance is necessary to the mutual assent without which there can be no contract.” (Italics by the J., dissenting.)
Applying that rule to Lazard’s agreement, it is quite evident that he was entitled to no notice of acceptance, because it is not a mere proposal but a solidary engagement with Henry Block & Bro.
This was the feature of the contract Davis entered into with Wells, Fargo & Co., which the Supreme Court particularly emphasized, as controlling their decision; for, in treating of this absolute and unconditional feature of it, they say:
“ But, if we should consider that, notwithstanding the completeness of the contract as such, the guaranty of the future advances was subject to condition imposed by law, that notice should be given to the guarantor that the guarantee either would or had acted upon the faith of it, we are to inquire what effect is to be given to the use of the words which declare that the guarantors thereby ‘guaranty unto them, the said Wells, Fargo & Co., unconditionally and at all times, any indebtedness of Gordon & Co., to the exienb and not exceeding the sum of ten thousand dollars, for any overdraft now made or that may be hereafter made at the bank of said Wells, Fargo & Co.
“ Upon the supposition now made, the notice necessary arises upon the nature of such guaranty.
“ It is not, and can not be, claimed that such a condition is so essential to the obligation that it can not be waived. We do not see what less effect can be ascribed to the words quoted than that all conditions that would otherwise qualify the obligation are by agreement expunged from it and made void.
“ The agreement becomes thereby absolute and unqualified; free from all conditions whatever. This is the natural, obvious and ordinary meaning of the terms employed, and we can not doubt that they express the real meaning of the parties.
“It was their manifest intention to make it unambiguous that Wells, Fargo & Co., for any indebtedness that might arise to them in consequence of any overdrafts of Gordon & Co., might securely look to the guarantors, without the performance, on their part, of any conditions precedent thereto whatever.” (Italics by the J., dissenting.)
The court placed their decision squarely upon the absolute terms *526 of the guaranty, viz.: “We guaranty unto them, the said Wells, Fargo & Co., unconditionally and at all times, any indebtedness of Gordon & Co.;” and' construed that language to be a waiver of all conditions precedent. In other words, the court interpreted those terms as having the same effect as a solidary promise of suretyship under our law; and operated as a waiver, or rather as a renunciation of notice of acceptance on the part of the guarantee.
That decision furnishes a conclusive answer to the contention of defendant’s counsel.
The next proposition that is insisted upon is, that in no event can Lazard be bound for the debts Henry Block & Bro. had already contracted at the date of his agreement, June 4, 1891.
Why not? The terms of his agreement are general, viz.: “I hereby become surety for Henry Block & Bro. for ten thousand dollars.” Also: “This agreement to bind me in the sum of ten thousand dollars until the 15th of October, 1891.” They are without any limitation or restriction as to any particular indebtedness of Henry Block & Bro., for which Lazard obligated himself as surety, past, present or future.
As a man binds himself, so will he be bound.
The law of suretyship puts no limitation upon such agreements. Quite the contrary, for the Code declares that “suretyship is an accessory promise, by which a person binds himself for another already bound.” Revised Civil Code, 3035.
That article may be interpreted to mean “ already bound” for an existing indebtedness, or .for an indebtedness to be created in the future. The essential thing is that the surety shall bind himself as the obligor is bound, and not differently.
But if this is considered to be a doubtful proposition, the matter is pat at rest by the parties themselves pending their negotiations on the subject.
On the 25th of May, 1891, plaintiff wrote a. letter demanding of Henry Block & Bro. a guaranty in these words, viz.:
“ You must also secure us in some way for money owing us for merchandise, and a guaranty to the amount of ten thousand dollars from your father-in-law would be acceptable.”
This letter closes with this sentence, viz:
“ The guaranty written of we want in such shape that it covers *527 all you owe us (on merchandise) and all you may owe us hereafter, up to ten thousand dollars.”
A similar request is made in their letter addressed to Henry Block on the following day. On the 3d of June these two letters were followed by a telegram of similar purport.
Immediately upon the receipt of those letters and telegram the agreement of 0. Lazard was procured, and on the 4th of June the following letter was mailed to the plaintiffs, viz.:
“ New Orleans, La., June 4, 189L-
“ Messrs. Laoliman & Jacobi, San Francisco, Gal.:
“Dear Sirs — Your telegram of the third to hand and contents noted, and to-day wire you, Lazard’s guaranty mailed to-day, which I enclose herewith. If I or our firm owe you this on that date, same will be promptly paid by C. Lazard & Co.
“Henry Block.”
These letters, amongst others, were introduced in evidence by 0. Lazard, and they are as binding on him as any other part of the testimony, and from its effect there is no possible escape for him.
Hence we have proved, “ out of the mouth of his own witnesses,” that the agreement was intended to secure the payment of Henry Block & Bro.’s merchandise account then due to the plaintiffs, as well as their future and prospective indebtedness up to the 15th of October, 1891.
But what is an even more important and conspicuous fact is that Lachman & Jacobi, over their own signatures, negotiated this guaranty, and influenced and procured the ag eement; and they indicated their willingness to accept C. Lazard as surety for ten thousand dollars. They telegraphed for it on the 3d of June, and it was promptly forwarded on June 4 by mail, and explained by wire. All of this correspondence is put in evidence by C. Lazard.
In our original opinion (see 15 So. Rep. 649 ) we held that the allegations of the plaintiffs’ petition in the suit of C. Lazard & Co. vs. Henry Block & Bro. — having been sworn to by C. Lazard, the senior member of that firm — constituted “ judicial admissions of a party to a suit, which can not be altered at will to the detriment of the other party, or with respect to those persons having an adverse interest in them.”
The purpose and scope of this expression were to affirm that if it *528 were at all doubtful that plaintiffs were entitled to recover against Lazard on his agreement, that the judicial admissions in that petition were conclusive against him, notwithstanding Lachman & Jacobi were not parties to that suit, because the amount of the ten thousand dollars surety here sued on was included in that suit, and the affidavit for the attachment was made by C. Lazard. To that proposition, counsel in their application make a most determined resistance.
Plaintiffs’ proposition is that, in this suit against Henry Block & Bro. and C. Lazard on the account and contract of suretyship, the latter can not deny, for the purpose of relieving himself from liability, the binding force of a contract, the benefit of which he had sought and obtained in the former suit, by procuring for his firm the first attachment of all the property of Henry Block & Bro., the common debtors of both parties, and defendants in both suits at the same time, and the appropriation of the proceeds of the sale of the whole of their property to the payment of the debts of his firm to the exclusion of all other creditor's, plaintiffs included.
Counsel for Lazard, in their brief, do not deny that the amount of this ten thousand dollar suretyship was included in the suit of C. Lazard & Co. vs. Henry Block & Bro., but, on the contrary, affirm that to be a fact, and insist that it was not in any way binding on C. Lazard & Co. For amongst other things they say:
“That suit was brought by the commercial firm of C. Lazard & Co. That firm was absolutely distinct from C. Lazard. C. Lazard’s obligations were not those of the firm. C. Lazard’s rights were not those of the firm. The firm was no party to this alleged contract of suretyship. Even if Lazard had paid every dollar of his obligation, the firm could not have recovered a cent from Block & Bro. The firm had no right, power, or authority to sue on any individual claim of C. Lazard.”
All that may be admitted at once, for it is not contended that C. Lazard & Co. were in any manner bound to plaintiffs, through the instrumentality of that suit. But it is urged, and our opinion holds, that C. Lazard’s affidavit to the petition in that suit, including the suretyship, is a binding judicial admission of it from which he can not escape, notwithstanding it was incorporated therein without the knowledge or consent of his firm.
Counsel seem to take comfort from the fact that there was no averment in the petition in the suit of C. Lazard & Co. vs. Henry *529 Block & Bro. to indicate that the contract of C. Lazard formed a part of it, and they say in their brief, “it was a plain error of law and fact to include any such individual claim of Lazard in the suit of the commercial firm of which he was a member. This plain error of law and fact was set forth in a motion and affidavit on December 1, 1891, and the court permitted the discontinuance of the suit in reference thereto. * * * Until this affidavit was filed there was nothing whatever in the record to show that the claim included the alleged guarantee.
“No human being, not possessed of the power of divination, could, from this language” — the allegations of the plaintiffs’ affidavit — “infer that the averment covered a contingent liability of one of the partners of the firm, .in which the firm had no interest or concern and which they had no right to set up and no right to recover on.”
Again:
“There is not a line of evidence in the record to show that plaintiffs had any knowledge as to what the indefinite language of this petition covered, or was intended to cover.
“ There was nothing in the record itself, when the suit at bar was brought, which gave the faintest inkling of the fact that the firm of C. Lazard & Co. was trying to enforce the individual claim of one of its members.”
The foregoing are distinct and unqualified admissions, that the amount of the suretyship was included in that suit; that it was included therein by C. Lazard intentionally; but that it had been, by him, so carefully secreted from view that, in his opinion, “ no human being, nob possessed of the power of divination,” could have inferred from the “indefinite language of the petition” that “it covered a contingent liability of one of the partners ” of his firm.
After this suit was filed on the 5th of October, 1891, the contract of suretyship went to maturity on the 15bh; but on the 7th of October, previous to its maturity, the attorneys for the plaintiff wrote to C. Lazard a letter, demanding immediate payment, on the penalty of suit instanter..
In that letter they say:
“ You are aware that attachments far exceeding Henry Bloch & Bro.’s assets have been levied upon them, and we demand immediate payment or we shall institute suit promptly.”
*530 What reply did C. Lazard make to that demand? He neither disavowed his liability nor plead prematurity, but, carefully withholding from plaintiffs’ counsel the fact that h¡s liabil ty was incorporated in the previous suit, asked them for an extension of time — thereby un-qualifiedly admitting his liability to the plaintiffs.
But the plaintiffs did not then institute suit; they waited patiently for five weeks, and only filed suit on the 16th of November, 1891— attaching the same property that C. Lazard & Co. had attached previously.
In their petition in this suit all of the facts of the suit of C. Lazard & Co. vs. Henry Block & Bro. are circumstantially related, alleging that it was first in order and rank of privilege, and that all of the partnership as well as individual property of the defendants had been seized. Setting out fully C. Lazard’s contract of surety-ship as securing the defendant’s account, plaintiffs aver that in that suit “ C. Lazard recognized an indebtedness due to petitioners by said Henry Block & Bro., and as covered by said contract of ten thousand dollars, and that C. Lazard admitted his liability therefor as guaranty for said amount by including it in the aforesaid suit, No. 33,910, and swearing to its correctness.”
It thus appears that plaintiffs were well aware of the fact that this suretyship was incorporated in the former suit, notwithstanding C. Lazard’s attempted concealment of it, and that fact was made one of the grounds for their attachment, and on it they place reliance as establishing C. Lazard’s admission of liability.
They also rely upon Lazard’s admission of liability and request for an extension of time to pay.
On the 20 th of November, 1891, just five days after this suit was filed, plaintiffs in the suit of C. Lazard & Co. vs. Henry Block & Bro. obtained an order of court for the sale, pendente lite, of all defendant’s stock of merchandise, and in pursuance of that order same was subsequently sold and the proceeds thereof applied to plaintiffs’ claim by preference under their ranking attachment to the exclusion of all others.
On the 30th of November, 1891, ten days subsequent to said order of sale, that ease went to trial on plaintiffs’ motion to confirm a default, and C. Lazard was placed upon the stand and interrogated as a witness, and in the course of his cross-examination he was asked a great many questions in reference to the agreement he *531 signed as surety for the defendants in favor of Lachman & Jacobi, his attention being invited to the petition in the suit, evidently with the view of inducing him to make an admisssion to the effect that it was included therein.
To all these questions objection on objection was urged by the plaintiffs’ counsel, but they were all overruled by the court and the witness compelled to answer, the objections, evidence and reasons of the judge covering fully fifty pages of the transcript No. 11,103 of this court. But finally, the day having been consumed, and no decisive answer from C. Lazard obtained to these pertinent inquiries, the court adjourned for the day.
On the following morning plaintiffs’ counsel went into court and filed a very guarded motion, merely stating that “through an error of fact (they had) claimed from the defendant forty-one thousand five hundred and ninety-eight dollars and forty-three cents,” while “there was due 0. Lazard & Oo. only the sum of thirty-one thousand five hundred and ninety-eight dollars and forty-three cents; and that they desired to remit the difference of ten thousand dollars on that account.
The order of court followed the terms of the motion. Still entertaining the idea that they had effectually concealed this suretyship from view up to that time, counsel say in their brief:
“ No human being, not possessed of the power of divination, could from this language infer that the amount covered a contingent liability of one of the partners of the firm.”
And yet they complain very bitterly in their brief that our opinion places an imputation of untruth upon the testimony of Mr. Leake “ when he states that he would not have permitted this claim to have been included had he been informed at the time; and that as soon as Judge Lazarus returned, the error of law and fact was corrected by motion and affidavit.”
In treating of the $10,000 guaranty, the opinion of the court, says:
“ We infer from the record that it was not until the demand came from the plaintiffs, based on that paper, that it became known to counsel that the attachment suit embraced the guaranty. He then told (counsel?) the explanation of the $10,000, (which) should have been given before the attachment suit was instituted, clearly implying that if given, the item would not have included the guaranty.
“The sMt as to the $10,000, was thereupon discontinued on the *532 ground of error. It is this suit, the allegation on which it was based, and defendant’s affidavit to the amount sued for, that it is urged on us, excludes defendant from denying his liability in the, present suit.”
But I have shown from the record that the plaintiff’s demand was made on the 7th of October, 1891, and that this suit was not filed until the 16th of November, 1891. During the five weeks that intervened, no effort was made towards rectifying the alleged error, and counsel for C. Lazard & Co. did not appear in court for that purpose until the 1st of December, 1891.
Under this.state of facts I think the judicial averments made in the petition of C. Lazard & Co. vs. Henry Block & Bro. are undoubtedly binding on C. Lazard in this suit.
- In our opinion we said:
“ And this court recently said in Williams vs. Commission Co., 45 An. 1013: ‘ There are acts in judicial proceedings which bind the parties to them, even so far as third persons are concerned.’ ”
This principle has often been affirmed by this court.
In Morgan vs. Kennard, 23 An. 645, the court say: “ It is a general rule that parties are bound by their judicial admissions; and it is also true that admissions made in one suit may sometimes be used in another suit, although the suits be not the same.”
In Edson vs. Freret, 11 An. 710, the court said: “He is notto.be heard who alleges things contradictory of each other.”
In Gridley vs. Conner, 4 An. 416, the court said: “ We understand it to be a rule in the administration of justice that a man shall not be permitted to deny what he has solemnly acknowledged in a judicial proceeding; nor to shift his position at will to a contradictory one in relation to the subject matter of litigation, in order to prostrate and defeat the action of the law upon it ”
These principles- have been announced in frequent decisions of this court, and in various forms of expression, and notably in the following, viz.: Farrar vs. Stacy, 2 An. 210; Webster vs. Smith, 6 An. 719; Osborn vs. Segras, 29 An. 291; Fowler & Stillman vs. Stephens, 29 An. 353; Factors and Traders Insurance Co. vs. De Blanc, 31 An. 100; Byrne vs. Bank, 31 An. 81; Folger vs. Palmer, 35 An. 743.
On the foregoing established facts and this summary of adjudicated cases, I am of opinion that this question is set at rest.
*533 And now the question presented for the serious consideration of this court is, can we, in the face of the law and the evidence, overrule our former opinion and pronounce a judgment in favor of > Lazard, declaring him free from all liability on his written promise of suretyship ?
This question has been answered in the affirmative by the majority of the court; but I feel constrained to dissent from the conclusions they have reached.