author: CHABLHS P. CLAIBORHI, JUDGE.

text:
    CHARLES í. CLAIBORNE, JUDGE.
    SUPERIOR TAILORING CO., APPELLANT, vs. CHAS. W. LEWIS.
    NO. 7427.
    April 17, 1919.
   CHABLHS P. CLAIBORHI, JUDGE.

The plaintiff la a business firm domiciled in Cincinnatti.

this suit was filed on December 21st, 1917.

they sue upon the following note:

"48868.00. Cincinnatti, Ohio, January 4,1916.
One year after date, I promise, to pay to the order of the Superior Z'l'g. Co., twenty-two hundred and' fifty-two dollars at -value received.
’Signed" Chas. W. Lewis".

Upon the back of this note áre the following indorsements written in pencil:

Cr. Cash.
1916 - Jany.29, 460
Pébruary 13, '450
April 11, 450
Hay 3, 450
- 29, 45Ó
June 19, 450
Aug. 450
id 29, 450
Oct. 11, 450
Hov. 2, 450
Dec. 450
id 19, 450
1917 - Pebry. 8, 4100
Hch. id, 4100
Apr. id, 4100
Hay id, 4100
total 41000.

Petitioner avers- that the above aaounte have been paid on account of said note, ’leaving a balance due and owing on said note of one thousand, two hundred and fifty-two dollars’; and it prays for judgment for said amount with legal Interest from January 4th, 1918 (date of said note) until paid.

The defendant resides in Hew Orleans, He denied that he was indebted to plaintiff in any sum whatever, but averred that, on the contrary, the-plaintiff owed him a large sum of money; he admits that the sum of $1000 has been paid on account of said note in the various credits' shown on the back of said note, and avers that the said credits are only a part of those to which said note is entitled, and that the balance of said note has been fully liquidated in the following manner:

that during the year 1915, the defendant was employed by the plaintiff as a traveling salesman handling a line known as "Sailor to the Trade” under a written contract; that at the. termination of the year on January 4th, 1916, he had received from the plaintiff in excess of his commissions earned in handling the above line the sum of $2252.00; that on January 4th,

1916, he made a new contract in writing with the plaintiff for the year 1916 to handle the same class of goods; and for the purpose of liquidating the above overdraft for the year 1915 in that particular line, and not to- liquidate any other account between plaintiff and defendant, as it was well understood and agreed, he signed the above note;

Defendant further avers that during the years 1915 and 1916 ’he Insisted upon plaintiff accounting to him for certain commissions due him by the plaintiff upon business and sales made by him or through him for the said plaintiff upon a special side line known as ’Cut, Trim, end Hake" work at the rate of Z/C commission upon all orders obtained by or through him during the years 1915 and 1916*; that the said commissions amount to a sum greatly in excess of the face value of the note sued on, and that the plaintiff has failed to render defendant any accounting; that an accounting should be made, and defendant's commissions thereon should be credited to the note to an amount sufficient to extinguish the note, and that he should have a judgment against the plaintiff for any amount exceeding the note; - that his commissions for all orders for "Cut, Trim, and Hake" work ware In accordance with a written offer made to defendant on October 23d, 1914, and aocepted by him; that his contracts' for the years 1915 and 1916 concerning the "Sailor to the Trade" line, were in no manner concerned with the side line of the "Cut, Trim, and Hake* work; that the credits upon the back of said note aggregating one thousand dollars were deductions made by the plaintiff from defendant's salary, - and that no credit for commissions of 3% due defendant upon the side line appear upon said note. Defendant prays for an accounting of the'Cut, Trim, and Hake" ‘business"*; that the note be declared paid, and for Judgment In his favor against the plaintiffs for whatever amount the plaintiffs may appear to owe him by said accounting.

There was Judgment In favor of plaintiffs and against defendant for #13.44; and In favor of the defendant Lewis, on his reconventlonal demand, against the Superior Tailoring Company for #1238.56,"which amount is to be credited on the promissory note herein sued on, and that on payment of the sum of #13.44 Interest and costs by the defendant In suit and plaintiff In reconvention to the plaintiff In suit and defendant In recon-ventlon, the said promissory note herein sued on be cancelled and annulled".

In other words the District Judge found that the defendant was entitled to commissions on the "Cut, Trim, and Hake" business to the amount of #123B.S6; and while the.plaintiffs' claim was for #1252.00, balance due upon the note, he reduced the claim by #1238.56, rendering Judgment In favor of plaintiff practically for only the difference between #1252.00 and #1238.56 or #13.44.

From this Judgment the plaintiff has appealed.

The defendant, In this Court, has prayed for damages for a frivolous appeal and for an amendment of the Judgment In his favor Increasing it from #1238.54 to #1270.90.

The evidence Is that the defendant was hired in 1914 aa traveling salesman to represtnt the plalntlffe In Louisiana and Ulsslsslppl to handle their line of "Tailor to the Trade" business; what the conditions of the contract were in that year is not shown, although the contract was In writing; his employ-aiont was continued during the year 1915: his contract for that year is not in evidence either.

On October 23d, 1914, the defendant received a letter from the plaintiffs couched in the following terms:

*0*1hg to the increased demands among a certain claes of trade for the cut, trim, and make proposition, 1 have about decided to put in a department of this kind, and would like to know what you think of this idea, x x x I am figuring on only allowing two or three of our men to place these lines, and in return for this extra service, will allow them 3% on all the business that they get. This will be clear profit and extra money for them, as I don't expect them to go out of their way to obtain this extra business, aw there are a great many accounts in the larger towns where a cut, trim, and hake propostltloh could be handled even though a tailoring line is in the town. It will have to be worked entirely separate, as one proposition will be hurting the other" *c."

On October 28th, 1914 the plaintiffs again wrote to the defendant:

"I am in receipt of yours of the 26th, and am glad to learn that you like our idea regarding the cut, trim and make proposition. Since writing you we have developed our plans and are getting up the necessary stationery and price lists which we hope will be ready by the 15th. of next month, x x x As regards our next seasorte arrangements with you, both Mr. Mueller and I thought it was understood that we were to continue our present arrangement until the first of the year, when you are expected here to go over matters more fully. You informed- us that this plan was satisfactory to you,and we feel that there'will be no hitch in' anything &c Ac".

She plaintiff testified that he obtained cut, trim, and make business in accordance with the terms of those letters: but he does not state what commissions,if any, he received. He continued to be employed by the plaintiffs during 1915, but under «hat conditions Is not shown.

On January .4th, 1916, he signed a contract with the plaintiffs In the following terms:

lo "The party of the first part (the Superior Tailoring Co.) employs the party of the second part (Charles V. Lewis) as traveling salesman and representa-tiva for a period of one year from date".
2o "The party of the second part agrees to devote his entire time and attention exclusively to the business of the party of the first part and to travel and solicit business in the States of Louisiana and liisslssippl add in such other territory as the party of the first part may designate".
So "The party of the first part agrees to pay the party of the second part the sum of $3000.00 in equal monthly payments at the end of each month, and in addition the stsn of $35 per' week for traveling expenses while on the road in the Interests of the party of the first part*.
4o "The party of the first part agrewa. to base the sales of the party of the second part on 8JC and should the amount advanced him for salary and expenses be less than Sf, of his net sales, the party of the first part agrees to pay him this difference at the expiration of this contract”.

Nothing is said of extra commission of Z% on cut, trim, and make business.

On the same day that this contract was signed, the defendant signed the note sued on herein. In his own words:

"In the year 1915 under my contract as a representative for the tailor to the trade the commissions that they offered me in my contract did not cover the amount of money they had advanced me to get business and salary. In other words, I was overdrawn".

Bis testimony continues:

"By the Court: Hew much was due on that out, tCim, and make business at the time? ' A. About seven or $600, and in order to keep on with the firm, I told them at the time I hare that coming to me and it is mine, and he said according to your contract it is not".

Concerning those commissions for the year 1915, defendant, on March 30th, 1915 writes to A. H. Woolf, sales-manager for the plaintiffs:

"How regarding extras you must remember I relin-guished my commission of 2% on 0. and L's. (Qundermann and Lewis) business just so we can give them the best of everything and also cut out the extras, in order to compete with the other houses. I done all this so that you could get the business, as I want you' to have it and won't be so short as to take 2% when it would interfere with' you giving them the best, and cutting out the extra charges*

Charles W. Lewis was a member of the firm of Qundexmann and Lewis, tailors in Hew Orleans.

On January 1st, 1917, the defendant signed another written contract for that year. The first and second clauses are the same as in the contract for 1916. The third clause reads as follows:

"The party of the first part agrees to pay the party of the second part (2100 in equal monthly installments of (175.00 at the end of each month".

Although the defendant had received no commissions on the cut, trim and make business for the years 1915 and 1916, the contract was again silent on the subject.

But the relation between the plaintiffs and defendant became strained soon after. The defendant complained that the plaintiffs were asking than too much for their goods, and demanded a reduction.

On March 10th, 1917, the plaintiffs wrote to the defendant, among other things:

"You now come along and ask us to cut prices, something we can't do and will not do; the second important feature you overlook is as follows: Hhen we made this year's contract with you, the agreement to pay you (2700.00 was bao ad upon our agreeing to talca into consideration í¡24000;00 of Oundermann and Lewis' business which you assured us and for which you were to receive a oommls- ' slon of 3%, this percentage on the aaount of business mentioned would amount to #600.00'and without this business you lmow well enough that wa would not have-consented to pay you any more than $8100.00. You did not want, as you recall, this commission Item-mentioned in your contract because you did not want Oundermann to know anything about it, but the agreement covering this 3£ was made in the presence of several witnesses”.-

On llarch 16th, 1917, the plaintiffs again write to the defendant:

"How as to the question of your oontract,.the facts as outlined in our letter of March 10th. are absolutely true and you know such to be the case. You turned down an offer made-to you by Ur. Arthur Wyler for considerably less money than what yourcontract calls for, and that offer was mads taking into consideration the Oundermann and Lewis business; after you turned down the offer you must admit that It was agreed as a result of your positive statement assuring us of #80,000.00 O. and L. business during 1917 to figure that amount of business on a basis of 3% which would make #600.00 to which you stated you were entitled and which you had never previously reoelvsd. With your guarantee of this much business, we consented to include this #600.00 In the amount of #8700.00 whleh we agreed to pay you; this agreement as to the #600.00 was not included in the wording of your contrae!, solely because you objected to it, stating that this was a matter solely between you and us and you didn't want Oundermann to know anything about it".

nothing in defendant's answers to these letters denies this side agreement, nor the statement that he "had never previously received* 3% commission.

But the differences between the plaintiffs and the de-fondant pulled them apart until Hay- 4th, 1917 whan, defendant resigned hie position with the plaintiffs and, by mutual consent, their contract wax cancelled.

On May 17th, 1917, the plaintiffs wrote to the defendants;

"Inclosed find statement showing balance due us on your note amounting to $1252.00. Inasmuch as you are no longer with us, we beg to ask what sort of arrangements you wish to make to liquidate this indebtedness".

On May 18th, 1917, the dependant wrote to the plaintiffs;

"How as to the 1252 dollars you billed me for the note I beg to advise that I am due the 3 per cent on O. and L. business of 1915 which amounted to over $20,000 and deducting that as Mr. Woolf always told you was due me I only owe you 1252 less 600 leaving $652. Send me a bill for this amount and I will make arrangements to pay same at once. This is what I am going to pay, so if you want to settle that way advise me at once".

On June 4th, 1917, the defendant again wrote to the plaintiffs:

"fours to hand. Now I can prove that 6. and L. paid extra for special work, and everything they got and as to the matter it never was settled so if you want to settle the matter I will send you a check for the difference less the $600 that I claim is due me and which I can prove was coming to me if you don't want to settle that way do just as you please and I can prove all I claim, x x I think you are acting very short in the matter and I have plainly stated my case'mow do as you want I will not honor any draft as I am willing to pay what is due you without drafts" .•

Nothing in this correspondence intimates any claim for extra commissions on the cut, trim, and make business, claimed in this case. The defendant actually mailed a check for $652 to the plaintiffs who refused it. This suit was filed December 21st, 1917.

We are of opinion that the defendant has faildd to make a case against the plaintiffs in the face of their denial. We think, on the contrary, that the plaintiffs have successfully established the absence of all claims of the defendant against them for the following reasons:

lo It is not shoen that the contract of 1915 with the defendant entitled him to any commission on the cut, trim,'and make business, and the contracts of 1916 and 1917 n?C silent upon the subject. The law presumes that parties have embodied all their agreements into their contracts and very wisely prohibits parole testimony "against or beyond what is contained in the acta or on what may have been said before, or at the time of making them or sinc e.

So The silence of the defendant concerning these commissions during the whole of the years 1915 - 1916 - and 1917, and their assertion only in the answerto this suit:

3o The fact that although the defendant claimed commissions for the years 1915 and 1916, he continued to make four payments of $100 each upon his note in February, March, April and May,1917: 4o The fact that when the plaintiffs demanded of the defendant payment of the balance of $1252 remaining unpaid upon the note, the defendant admitted hi3 indebtedness, and claimed, as an offset only $600 the commission he pretended, for the first time, he had bargained for upon the Gundermann & Lewis business for the year 1915 -, and actually mailed to the plaintiffs his check for $652 /tés c

But the plaintiffs are entitled to interest only from the date the note became due. C. C., 1938; (1932); 3 N. S., 185; 6 La., 727, 730; 2 R., 472; 6 R., 166; 1 A., 267; 3 A., 338; 19 A., 299; 104 La., 231; 109 La., 759; 127 La., 183; 8 Ct.App.396

Judgment herein is reversed and set aside; and it is now ordered that the plaintiffs, the 8uprerae Tailoring Co., recover judgment against the defendant, Charles W. Lewis, for the sum of one thousand, two hundred and fifty-two dollars with five per cent per annum interest from January 4th, 1917 till paid and all costs of suit.

April 17th, 1919.


source: Caselaw Access Project

author: Dinkelspeil- J.-

license: Public Domain

text:
    NO. 7429.
    (Court of Appeal Parish at Orleans.)
    Carolina Portland Cement Company. -vs-Carey & Boettner et. als.
   Dinkelspeil- J.-

The controversy in this case presents sub--star.tij.lly the following fácts;-

The plaintiffs, manufacturers of cement and other building materials,sue Carey & Boettner, an ordinary partnership, composed of Valter T. Carey and Henry Boettner, the Sewerage & Rater Board of Hew Orleans, Richard He. Carthy, Jr.and the United States Fidelity and Guaranty Company, claiming that petitioners furnished to Care$ &'Boettner, from June ?th. 1915 to June 18th. 1915, they being sub-contractors of Bichard He. Carthy Jr., goods, wares, merchandise and materials for the price and sum of 0711 • 25; that said materials so furnished were used by Carey & Boettner,wait sub-contractors, under, their oontraot with Ho. Carthy in work dene for the Sewerage & Rater Board under He. Carthy's contract with it.

That under said contracts the surety company became responsible to whoever might appear and be entitled thereto. Its libility therefor being in a sum in excess of the amount claimed in favor of all parties in interest as above c recited.

In this case all parties were served . Carey & Boettner not answering,a judgment by default was entered against them and confirmed.

The Sewerage & Rater Board in its answer claimed substantially, that a complete settlement was had between it and the 3aid 'Jo. Carthy, but that respondent had in its hands 0714.00 to cover such claims as plaintiff herein might have under the attested account served on respondent les3 such oosts as may be expended by rsspindent herein.

Richard. He. Carthy in his answer admits, that he was indebted in the sum claimed, in fact the original contract was for $3.114.00. on which Mo. Carthy claims to have paid $3.369.70., and therefor hae in his hands subjeot to this judgment the sum of $60.30., which he is ready and willing to pay.

The Surety Company and Me. Carthy base their defenses on the fact that this being a public work, that there is no lien or priv--llege in favor of the material man or otherwise, and that plain-tiffs have no lien or privilege on them against the works or in the fund in the hands of the Sewerage & Water Board. On the contrary, they allege, that said amount in the hands of the Sewer-age & Water Board, was and is due to Me. Carthy in his sole and exclusive right, free from any claim by the plaintiffs, and said fund should be paid to Me. Carthy, and the Sewerage & Water Board should be ordered and directed to make such payment.

Ho. Carthy further claims in his behalf, that Carey & Boettnei not having given proper notice at the proper time, that is forty--fivs days, under act 134 of 1906, plaintiffs cannot be heard to contest this amount not having given that notice and Me. Carthy, not having received it from anyone else.

We donot understand and do not ixxxsxgxz* interpret the decisions in the cases of Barret Manufacturing Co. vs. The Dock Board, 133 La. Page 1022, nor the case of the State vs. Jackson, 137 La. Page 931 to be in point with the case at barj for the reason that these contracts were made with public bodies of the State or its,adjuncts , and under-the terms of the act in question there can be no doubt, the State as such, not being sueable parties, laboring men, material men-and others can not look to the State, as in these cases above sited, for compensation. The act in question being read into the contract, and therefore we do not oonsider that ease to apply in this controversy.

Ha The question of no service having been made of an attested account within the prescribed time doss not apply in this case, because the contract in question was net entered into betunen the sewerage 4 Water Board and Carey & Boettner, but, on the aontrary, between Ho. Carthy the oontraotor for the Sewerage & Water .Board and the aub-contractors Carey & Boettner, therefore the aot In question, In* so far as prescription is oonoerned , Is In our .judgment not applicable.

The Supreme Court in the case of Shreveport Mutual Building ± Association vs. Whittington, 141 La. Page 47, said; "In no oase has it ever been held that the surety was released by non service of an account upon the-owner; and this court cannot possibly so hold unless it it prepared to hold that the oontraotor is released for the Satute in express terms provides that: "The surety herein shall be limited to such defenses only as the principal on the bond can make.

For the reasons herein expressed the judgment of the District Court is affirmed.

Judgment affirmed.


author: By his Honor John St. Paul; Per Ourlaw.

text:
    NO. 7430
    CONSERVATIVE HOMESTEAD ASSN. VS THOMAS A. POLLACK JR., ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   0EI1II0H»

By his Honor John St. Paul;

This is a processing in concurso arising out of a Building contract, but the only issue before us is a controversy between the surpty on the contractor's bond and two furnishers of material, the precise point involved being whether certain credits received by the latter have been properly imputed.

1.

At the very outset it is urged that the statute (Act 262 of 1916) provides that the surSty on a contractor's bond shall be limited to such defenses only as the contractor himself might make; and since the contractor does not, and (it is said) cannot, complain of the imputations of payment herein made, it follows that the surEty cannot do so.

But it is manifest that the statute cannot be given a strictly literal interpretation without leading to consequences clearly not intended by the legislator; thus if the surety be a minor, or an interdicted person, it is not to be doubted that the tutofc or curator of such person could set up the minority or interdiction as a defense, although suoh minority or interdiction could not possibly auail the contractor as a defense.

Hof can we doubt that where the person seeking to hold the surity has done some act prejudicial to the rights of the surPty, the latter may set it up as a defense even though it would/have availed the contractor, who might have been a party to such act or might not have been Injured by.it. Conn vs Guaranty Co, 13 Ct of App 99 (102); Panama Sash Co vs Guaranty Co, 12 Court of App. 15; Meyer vs Bichow, 133 La. 975 (982).

We are therefore of opinion that the olauso in the Statute, providing that the surfty #### shall be confined to such defenses as the contraitor Himself might make, must be taken with this limitation, that the party invoking the clause must himself have done nothing a to prejudice tho rights of the surety, since it is well settled maxim of law that no man may profit hy his own wrong.

11.

It is also urged that a surlty cannot complain of an imputation of payment of which the principal debtor does not complain; that an allottment of payment satisfactory to the principal debtor must be accepted and accjjiiesed in by the surity.

But the law is, that the rights of third persons, especially of sureties, though not controlling, must yet be considered in applying payments; and"where'the payment, with the knowledge of the creditor, is MSétéété derived from such third person, or from a fund connected with the secured debt, it must b,e applied thereto"; 30 Cyc 1251-1252; See also Panama Sash Co vs Guranty Co, 12 Ct of App p. 15 (and authorities cited P. 204; Also Burbank vs Buhler 108 La 39; Roca vs Caruso, 7 Ct of App 451; Jordy vs Judlin, 9 Ct of App 43.

The preliminaries settled we now proceed to considdr the precise matter before us.

111.

The claim of W. H. Ward, doing business as the Algiers saw Sc Planing Hill, for (¡>1944.56 is not disputed as to amount; but the surity claims that the five payments amounting in all to $1725 should have been imputed go items sold to the contractor for the Conservative Homestead (or Kraft) Job, and should not have been imputed to other though older accounts.

As to this, the first of these payments ($300) was derived only for a third part from a payment by the Homestead to Pollock (the contractor), and the last payment (also #300) cannot be traced to any payment by the Homestead. The three other payments (in all $1125) appear to have come out of payments made by the Homestead .

But In each instance the payments received by Pollock fro* the Homestead were deposited in his own hank account and ha raid Ward with his own personal check upon his own hank; and both Vara and Pollock 3wear that Ward was not told and did not know whfnoa the funds were derived, and was not directed to impute them in any particular -¿“4 it also appears that Pollock had a number of other jobs on hand, so that there was no reason for Ward to know that Pollock was receiving funds from any#source morí another.

Under the circumstances we think Ward was entitled to input* the payments to the older accounts as he did; the authorities sham quoted by us holding that the obligation to Inputs' payment ts terns particular account arises only when the creditor knows thsfoonrce from which the funds were derated.

IV.

The claim of F. C. Duvio for #1049,48 is also not disputed as to amount. But here also the surfty claims that three psysents of #540.74,#412, and #260, fin all #1X22.74) should have been imputed to the Kraft or Homestead job as the older account, and not to certain other accounts as was done. -

The faota are that these three payments were not derived from the Homestead, but the first earns from the Suburban Drug Store, or Weilbaohsr job, the second from the Joseph Iripol^no.. Job, and the third from the Peter Taluto Job.

At the time the last of these payments was received (Npvenbsr 23rd) they would S### just have sufficed to wipe out the open account against Pollock as it stood on Duvio's books, including the items for tha Homestead or Kraft job, the last of which was charged on November 18th.

But Duvio undertook to impute the payments t.o two certain items, as follows; to a note which he held against Pollock for #805.01, and to an item of #217.85 which Pollock owed to one Sus Peterson, who in turn owed Duvio the same amount, Duvio agreeing tío accept Pollock as his. debtor, in place of Sus Seteraon.

Ah this latter transaction took place on December 8, that is to say, more than fifteen days after Duvic received the last payment; and as the transaction shows on its face that it was nothing more than a- hold attempt to unload on the surfty in this case the debt which Gus Peterson owed Duvic, we shall devote no space to a consideration of why the position taken by Duvic as to this item cannot be countenanced.

As to the note of $805, which Duvic held against Pollock, it was not due until November 27th and was in bank for collection three it when all payments were received by Duvic. There remained until its maturity and apparently was taken out by Duvic only about the time when the Gus Peterson matter was arranged, on which day (December, 8th) Duvic and Pollock made up a set of accounts and imputed the various payments in a manner satisfactory to themselves, hut which was clearly meant to wipe out all Pollock's indebtedness to Duvic sake and except the indebtedness for which this surfty was bound.

Sut as thi3 last named indebtedness was due and owing at the time the payments were received, and the note had not yet matured, it is clear that the payments must be imputed to the past due open account.and not to the note unless the equities of the ease should require otherwise.

But there is no equity which does so require. For the ledger account of Duvic shows that this note did not Include any indebtedness on the Trapolino or on the Taluto jobs, and included only $117.20 on the Weilbaeher Or Suburban Drug Store Job.

So that the most that equity and the principles above discussed would require in this case, would be that $117.20 out of the Weilbacher payment' be imputed to the note and the. rest to the account current.

But even this should not be allowed.

The taking of the note novated that account, not beacuse a debt is novated by the mere taking of a note thereforf, but because Duvic by striking a general balance and accepting a note in settlement of that balance, has so far confused, the various items of the acoount that they are no longer separable; since Duvio could no longer claim any one item separately from the rest, or Pollock tender payment of any one item without tendering the whole. C. C. 2052-366S. £/•£? •S@64 .llf'f-

February 1919.

And it is very generally agreed that a confusion of several distinct debts so as to render them no longer seperable operates a novation. Baudry-Lacantinerie, Proit Civil Vol 13 (obligations Vol 3) No. 1708 (1710)

Moreover, Duvic hating discounted the note with the bank, thereby changing the creditor, that itself operated a novation under our jurisprudence, Woolfolk vs Degelos, 24 An 199; C. C. 2189 #3.

And again sinoe the bank held the note when the payments were received by Duvio, it is a presumption that they were made on the open account, and not on the note which was not the property of Duvic. Act 64 of 1904 Sec 74, C. C. 2140.

We are therefore of opinion that the payments received by Duvic should have been applied on the open account and not to the unmatured note, and the judgment appealed from must be amended accordingly.

It is therefore ordered that the judgment appealed from be amendea by striking therefrom the item of #1049.42 in favor of F. C. Duvic as a charge against the surPty herein (United States Fidelity and Gauranty Co), and as thus amenaed the judgment is affirmed; the costs of this appeal to be borne one half by P. C. Duvic and one half by the United States Fidelity & gauranty Co.

Hew Orleans La,

OH REHEARING.

Per Ourlaw.

for the reasons assigned In the matter of Mrs Jalla Campagno, Praying for a Conoursua, Ho. 7443, this day decided,

It la ordered that, aa between the United States fidelity and Suranty Co and W. H. Ward, both our former teoree and the judgment of the lower oourt he reversed, and that the ease he remanded to the eourt a qua to he tried and deoided in aooordanoe with the views expressed In the opinion and final deoree handed down in said cause Ho. 7443.

Hew Orleans, la, May 1919.


author: By his Honor John St. Paul. per Curiam|

text:
    NO. 7437.
    J. F. PIERSON VS MRS. LILLY CARMOUCHE.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPIHIOH.

By his Honor John St. Paul.

This is a contest orer the proceeds of eertain furniture. Opponent claims under a vendor's privilege. Plaintiff elalras, 1; By virtue of a subrogation to a lessor's privilege; and 2; By virtue of a conventional pledge.

X.

In August 1916 defendant leased certain premises from one Peter Jung and gave him her non-negotleble notes for the rent. At the same time she also purchased on credit from opponent the furniture herein seized and sold; hut before plaeing the furniture on the leased premises opponent obtained from the lessor a waiver of the lessor's privilege.

On Uay 1st. 1917 an*iagain on June 1st., defendant being unable to pay her rent for the months of April and May, applied for assistance to plaintiff, her legal adviser.. The latter, being in ignorance of the waiver aforesaid, paid the rent to the bank where the lessor had deposited for collection# the rent notes given him by defendant; and thereupon took from her (the debtor) a subrogation to the lessor's claim (0. C. 2160 #2).

As we have said before the rent notes given by defendant were not negotiable: for we find that they Were payable simply to Peter Jung, not to order or bearer.

It is therefore wholly unnecessary to innuire whether the holder of a negotiable note, seeured by mortgage ,or privilege, takes the same free of any unknown equities which might exist as to the mortgage or privilege by which It is seeured. Pox however the rule may be as to negotiab' instruments, the reason thereof would be wholly inapplicable to non-negotlable ere1its. As to the lattot they do not come within the seope of the law Merchant, and whoever tUkrcuhei acquires such oreditsjAonly such rights as his author had, since by the general law no one ean transfer to another any greater right than he himself has. See 19 An. 100.

November 1919.

II

The evidence establishes, and plaintiff admits, that at the time ho toot the conventional pledge, ho then knew thaw opponent had a vendor's lien upon the furnituro and.l^^wd heen informed that the lessor's privilege'had toen waived.

The jurisprudence formerly was that the purchaser or pledgee of personal property, who knew that his vendor or pledgor still owed a balanee on the purchase price thereof, took the property subject to the vendor's lien thereon’. (See Beauregard Furniture Co. vs Harry Katz et al, No. 7423 of our docket and authorities there cited; especially Seelig vs. Dumas, 48 An 1494.)

But that jurisprudence i as changed in Dreyfous vs. Cade, 138 La. 298, whore the court very distinctly held that "a purchaser on credit of movable property may sell it to a third person who knows that he has not paid the pries, and the original vendor loses his privilege" (Syllabus (I).

tie .do not think the authorities cited by the eourt support the proposition as stated, hut the ruling is too olear td> be disregarded.

She judgment appealed from must therefore he affirms 3.

Judgment Affirmed.

Hew Orleans La.

ON REHEARING.

per Curiam|

;/u submitted to the Supreme Court the following question, towit;

l.tay p purchaser on credit of movable property validly give it in pledge to a third person, who knows that ha has not paid the pries (hut is otherwise in good faith), so as to vest in the pledgee a right superior to that of the vendor whose privilege thereupon ceases (?) hy reason of the property having passed out of the possession of the vendee?

The court answered; Yes.

Our former decree is therefore reinstated and made the final judgment herein.

New Orleans, La, March 1920.


text:
    Mr Justice Provosty.
    Jas. F. Pierson vs Mrs. Lillie Carmouche
    March 1, 1920
   Tha Court of Appaala for tha Parish of Orlaana haa oartifiad to thla court for Inatruetlona tha following question;

*Uay a purohaaar on oredlt of noTabled proparty validly fira it in pledge to a third paraon, who known that ha haa not paid tha prioa (but la otharulaa in good faith), ao aa to vast to that in tha pledgee a right superioresf tha vendor, ahoaa privilege tharaupon aaaaaa (7) by reason of tha proparty having passed out of the possession of the vendeeT"

va anaver. yea. In Dreyfous vs Cade, 138 La. 298, thla question waa vary fully disouaaed, with full referenoe to autorltlea, and waa decided in tha affirmative.

Tha daclaiona which have appeared to our learned brethren of tha Court of Appaala to ba oppoaad to thla, wa have not found to ba ae in reality. They are Compton vs Dretlin and Jacobs, 118 La. 360; Fetter vs Field, 1 An. 80; Seeley vs Dumas, 48 An. 1404; Hewitt vs Williams, 48 An. 686; and Bres and O'Brien vs Cowan, 22 An. 438.

Tha first, Compton vs Dietlin and Jaoobs, involved tha ^yila-demeanor in trade and oonmeroe act," and the preaent caoa doce not ooma under thataot.

Tha next, Fetter vs Field is not only not oppoaad but la etrletly in lina. The vendee shipped tha goody and pledged tha bill of lading, and thla pledge was preferred to the vendor.beoauae tha delivery of tha bill of lading waa a delivery of tha goode,,by axpreas provision of Art. 3227 o< A 4lw Cod* the vendor*o privilege continues ¿¿/¿/¡¿/¿¿¿/¿¿¿¿¿¿/¿‡ t0 *xiet only ao long as the property sold "still remain* in the possession of the purchaser."

In seelig vs lxunas, the suit was in damages, ond^baséd on the fact that the property had not bean «old to Theresa Hamilton, but only leased, and that the purchaser from this lessee v;a$ ar/are of that fact. There was no attempt being made to enforce the privilege of the vendor. Very- true the court added thaf the suit 1n damage* might have been maintained even though the property had been not leased but sold to Theresa Hamilton; but this was on th* principle enforced in Irish vs Wright, 8 Rob, 428, that a person who fraudulently aids e debtor in placing his property beyound the reach of his creditors renders himself liable in damages to the creditors,

'«'he other cases did not involve the privilege of the vendor but that of the furnisher of supplies on the crops of the year, as to whivh the Code, Art* 3317, says that if rests not only on the crops but also on "the proceeds thereof", and that it "shall not be divested by any seizure and sale of the land while ths crop ip on it*" it was under this provision of the Code that these decisions v»*»r* rendered, see also Weill vs Kent, 62 An. 2139; National Bank vs Sullivan, 117 La. 163.

To the Honorable

Shr oüíNíJj.'J!; ü)U:<? OF i,'JUiól‘\l¡A

The undersigned, Judaea of the Court of Aneeal for the ¿'arlan of Orle ana, respoctfully o hf.'ipy and óubialt for Instructions the following question arising in, and (in our opinion’ll determlnativ of, a matter now pending before us, entitled:

No. 7437

Jas. F. Pierson

vs

Mrs. Lillie Carmouche

(Opposition of ...ax Barnett Furniture Co. Ltd. )

VIZ:

,J.U110H: aay a purchaser on credit of movable property validly give it in pledge to a thira person, who knows that he has not paid the prieeiout is otherwise in good faith). so as to vest in the pledgee a right superior to that of the vendor, whose privilege thereupon oeaBes(?'i by reason of the' property having passed oat of the possession of the vendee?

II

The .-natter is now before us on rehearing/. She faoto are fully set out in the opinion on file, oopy whereof wo include herein. They were practically undisputed, and the deeiuion hinged on two points(appearing) of law, one of which has now vanished from the MMt 4h*. tn points appearing from our Byllabus, sol as follows;

StLliBUS

1: Bowevar th# Sols, way bs as to the bolder of s negotiable sots talcing th# sea# free of unknown equltias whloh might axlat as to th# mortgage or privilege by whloh it 1# «asurad, that role oan have no applloatlon to non-nt-aotlabl# oradita, as to whloh the asalgnee ao qu irea only auoh rights as his author had* Kugler vs Taylor, 19 An 100.

E: Th# Jurisprudence formerly was that the purohaaer or pledgee of. personal property, who knew that his vendor or pledge# still owed a balanoe on the purohase price thereof, took th# proparty subjeot to the vendor's lien thereon; but that jurisprudence was changed in Dreyfous vs Cade, 138 La. 298, and auoh purohaaer or pledgee now takes the property free- from the vondor's lien.

OPIEIOB

This is a oonioet over the proceeds of certain furniture, Opponent oíalos under'a vendor’s privilege. Plaintiff olalma, 1st By virtue of a subrogation to a lessor's privilege; and End By virtue of a conventional pledge.

FIRST in August 1916 defendant leased certain premises fro. BBS' Tatar Jung and gave him her' nan-negotiable notos for the rent. At the same time she also-purchased on oredlt from Opponent the furnlturé herein aelsod and sold; bat before placing the famltore on the leased premises oppoe nent obtained from the lessor a Waiver of the lessor's privilege.

On May lat 191?, and again on Junelst, defendant being unable to pay her rent for the months of April and Hay, appealed for assistance to plaintiff, her legal adviser., the latter, being'In Ignorance of the waiver aforesaid paid the bank where the ieesor had deposited for collection, the rent notes given him by defendant; and thereupon took from her (the debtor) a aubftogatlon to the lessor's claim. (C.C. 2160, #2).

As we have sold before, the rent notes given by defendant wore not negotiable: for we find that they were • payable simply to Retar Jung, not to ordor or to bearer.

It le therefore wholly unnecessary to inquire Whether or not the holder of a negotiable note, secured by mortgage or privilege, takes the same, free Of any unknown equities whloh might exlat as to the mortgage or privilege by whlob it Is secured, . for however the rule may be as to negotiable Instruments, the reason thereof would be wholly Inapplicable to non-negotlablo oredits. As to.the latter, they do notfooae within the scope of the law llerohant, and whoever qoqairea auoh credits, aoqulros only #uch rights as his author had; since by the general law no one can transfer to another any greater fight than, he himself has.

See Kugler vs Taylor, 19 An 100.

aeoond: The evldenoe establishes, and plaintiff admit#, at A **— —'* - — ' ’ * ■ -• tha knew1 t the ,time Be took liege had been waived. oonventlonal pledge, he then Informed that the lessor’s prlv-

The Jurisprudence formerly was.that the purohaaer or pledgee of personal property who knew that his vendor «till owed a balance on the purchase price thereof, took the property subjeot to the Vendor's 1ion thereon, (See Beauregard Furniture Co vs Harry Katz et al, No. 7428 of our docket, and authorities there cited; especially Seelig vs Dumas, 48An 1494).

But that Jurisprudence was ohanged in Dreyfous vs Cade, 138 La 298, where the court very distinctly held that " a purchaser on Crbdlt afsovablo property may sell it to a third person who hop** that he has not paid the prioe, and the orlgiooJV'reador loses hie privilege."

(Syllabus #1)

We do not think the authorities olted by the court, support the proposition as stated; bat the ruling is too olear to be disregarded;

She Judgment appealed from mast therefore be affirmed,

JUP8M&BT APEHatSD.

Ill

She former Jurisprudence to which we had referenoe, is as follows:

1st Compton vs Dietli* & Jacobs, 118 La. 360 (367).
2nd Seelig vs Dumas, 48 An 1494 (1497).
3rd Hewitt vs Williams, 48 An 686 (693).
4th Bres & O'Brien vs Cowan, 22 An 438.
6th Fetter vs Field, 1 an 80.

We are well aware that these cases are not applicable where Articles of Commerce are parohassd for the purpose of resale, sines there ta then an implied waiver of the vendor's privilege; and *# ourselves have held in Snell vs Hart Jewelry Co. (14 Orleans Appeals 94) that even a donation passes the property free from the vendor's lien when the vendor knew that the purchaser bought for the express purpose of making a gift (and notwithstanding^. C. 1661).

xr

Plaintiff reliesffor the maintalnanoe of his conventional pledge, upon Dreyfous vs Cade, 138 La. 298, above mentioned. He also relies upon Florsheim Bros. vs Howelll, 33An 1184; but in that oase the court atreesed the faot that its decision rests apon the epeoial provision# of Act 66 of 1874, section 3, "a hard law bat written in language so plain os to leave no morn for doabt or evasion, --savoring of spoliation,"

She first of theso two cases involved « resale of the property, the aeoond a statutory pledge. In both, the lossof the vondor's pelvilege was attributed to the purchased property having passed out of the possession of the vendee.

She opponent relies on the five eases above cited.

le would feel Jactlfied in net following the Plorahela case for reasons readily perceivable: We hesitate about following the Dreyfaus oaee , partly because it (In effeot) overrules five well considered cases, without mentioning them (possibly because they were not called to yoar attention); andpartly beoauae that case was In1 part decided (and might have been deeided entirely) upon ether groando. Hence oar Question.

We transmit ^herewith the entire record and the briefs of sounscll to the.and that mp may be before you, should your honors think proper to "require that the whole record be sent ap for consideration, and' decide the whole matter in oontroverey in the same manner as If.It had been on appeal directly to the Supreme Court." Const. of 1898 . Art. 101.


author: CHARLSS F. CLAIB0RK3, JUDGE.

text:
    MRS. JULIA COMPAGNO, PRAYING FOR A CONCURSUS.
    No. 7443.

   CHARLSS F. CLAIB0RK3, JUDGE.

On March 8th., 1917, plaintiff, Mrs. J. Compagno, the owner, made a written contract with Edwin L. Markel, contractor, to sheet a building for the price of $2770.40, payable in five installments of $554.08 each; the fourth payment "when the house is accepted and completed", and the fifth and last payment "forty-five days after".

The United States Fidelity and Guaranty Company signed Jiarkel's, the contractor's, bond for $1385.20.

Markel erected the building. By a writing dated June 29th., 1917, recorded in the mortgage office on the next day, June 30th., Mrs. Compagno stated:

"Notice is hereby given to all whom it may concern that I did on the 18th. day of May, 1917 accept tht-completed building erected by Edwin L. Markel, contractor &o.".

Mrs. Compagno made four payments to Markel, amounting to $2216, leaving unpaid only the fifth and last payment of $554.5?.The payments were made on March 16, 22, 31st. and the fourth payment on May 18th,, 1917.

But the men who furnished the materials towards the building claimed that they had not been naid. The following materialmen filed sworn accounts with Mrs. Compagno and recorded them in the mortgage office, viz:

lo June 29th., 1917, F. \V. Devoe and
C. T. Reynolds & Co. 13.30
2o " " " Geo. H. Baindei 215.00
3o " " " John H. Gaignard 185.00
4o " " " Salmon Brick & lumber Co. 33.50
5o " " " Henry Scheibe 67.65
6° " " " Carolina Portland Cement Co. 43.25
7o " " " Jordy Bros. Slate Co. 225.00
80. June 29th., 1917, Miller-Goll Manfg. Co. 380.82
9o " " " J. Iff. Thompson 117.31
10. " 38th., " W. W. Carre 543.66
llo July 2nd., " Jos. B. CraBto 34,00
Making a total of & j.BdB.42

Thereupon Mrs. Compagno filed these concursus proceeding?, deposited the last installment of $554.08 remaining in her hands in the registry of the Court, for distribution among the mater-ialmen; she cited^surety and all the materialmen, and asked to be relieved of all further liability, and that the privileges recorded by the materialmen be cancelled.

lo Devoe & Raynolds answered claiming a judgment against the owner and the surety with privilege.

2o Haindel prayed for judgment against the owner, the contractor and his surety.

3o Gaignard charges that the payments were made in anticipation, that the contract and bond were not recorded within the time required by law, and he prays for judgment against the owner, the contractor, and his surety.

4o The Salmen Brick and Lumber Co. prayed for judgment against the owner, the contractor and his surety,

5o Scheibe answered that the payments were made in anticipation and prayed for judgment also against the above named three parties.

6o The Carolina Portland Cement Company aver that the payments were made in anticipation, that the other accounts were not served in time upon the owner, and asks for judgment also against all three above parties.

7o Jordy Brothers allege that the contract and bond were not recorded in time and they pray for judgment against all. three parties also.

8o The Miller - Goll Manufacturing Company charges that the contract and bond were not recorded in time and that therefore the owner is liable to it as well as the contractor and surety.

9o J. ',T. Thompson makes the. seme allegations and nr ayer.

10o So do the. Carre Company.

llo Crasto excepted that the petition set forth no cuase of action and that the Court tos without jurisdiction because he had filed suit upon his claim in the City Court and had obtained against' lírs. Compagno a judgnent from which an appeal was presently pending before the Court of Appeal* Tho judgnent fails to pass upon thebe points, and Crasto has not appealed nor prayed for an amendment of the judgnent. We cars* not consider his exceptions.

For answer he demands judgnent against the plaintiff and the surety.

Edwin I. ICarkel, through his trastee in bankruptcy, alleged that the contract was for $2855, and plaintiff having paid only $2216.32, remains owing him $638.68 which he claims both against the owner and his own surety.

The Surety Company pleaded vagueness, non-joinder of defendants, and no cause of action. ' These exceptions were not pressed upon appeal and must be considered as abandoned.

For answer the Surety Company admitted the building contract and its signature to the bond, but denied that the . payments had been made or that they had been made as they be- . came due , and averred that there had been alterations and extra work done.by the contractor for which the plaintiff was responsible; it admitted tha acceptance of the building as alleged.; it denied that the materialmen'had "given credit for all the materials returned or payments made respectively to than", and it prayed for judgnent against the plaintiff dismissing her suit.

Howard J. Jonee intervened claiming to have done work apd furnished, materials necessary for the electric wiring of the building amounting to $45.50 less a part payment of $5.Cb for which he prayed judgnent.

The matter was referred to a commissioner.

He did not pass upon the question of the liability of the owner to the materialmen, for the reason, as stated by him, that the sum deposited in Court and the amount for which the surety was liable were more than sufficient to pay all claims as reduced by him. Tlie liability of the owner has not been pressed in this Court and we shall not pass upon it either.

The Commissioner found that at the time the material-men in this cause were supplying itarkel with materials to execute the contract in this case^ I/aiksl had on hand seven several contracts for which they were supplying him; and that while the materialmen were careful to identify the particular building to which the materials went, they kept with the contractor only one general account which was charged with all mo/cerials furnished and credited with all payments made, without inquiring from what source the contractor derived the money paid ’oy him and without imputing the payment to.the materials furnished to any particular building, and without directions from the contractor as to what building to credit.

Under the circumstances the Comissioner was of opinion that the payments made by the contractor to the furnishers of materials during the time of this contract from liarch 8th. to Stay 13th. ahould be distributed in the proportion of one-seventh each among all the materialmen who had furnished materials during that time. The Commissioner was guided by the following authorities quoted by him, viz: 6 N. S., 113; 3 R., 361; 2 A., 24; 3 A., 351; 4 A., 509; 9 A., 455; 13 A., 294; 36 A., 312; 115 La., 1051.

Some of those decisions maintain the proposition that payments must be imputed proportionally to debts of an equal nature and all due.

^ The Comissioner allowed the fcl’.owing claims: John H. (laignard for (5185 and Howard J. Jones for $40$50 ar.d Jos. B, Crasto for $34,

He disallowed the claim of Devoe and Eaynolds of $13.30 and of Scheibe and Carolina Portland Cement Co.

He reduced the claim of Eaindell from $215 to $45, because Haindell had received from Itarkel $90 on account: and, at that time, he was furnishing two jobs for Karkel which were due,and he imputed the payment one-half, or $45, to each job.

He reduced the claim of the Saínen Erick and Lumber Company by $14.28, because they had received from lfarkel $100 on account, and, at that time, they were furnishing seven jobs for Markel which were due, and he imputed the payment one seventh or $14.28 to each job.

By the same process he reduced the claims of Jordy Bros, from $225 to $167.16, Miller-Goll Manfg. Co. ^rom $380.32-to $232.82, J. ¶- Thompson from $1]7.24 to $68.88, and W. W. Carre from $543.53 to $249.38.

He recommended that judgment be rendered in favor of the above named parties, that the Surety be condemned to pay an amount which,added to the sum deposited by the owner, v:o" be sufficient to pay their claims and that their inscriptions be cancelled.

All the materialmen opposed the report of the Commissioner, except Gaignard, the Salman Brick S. Lumber Co., j. Thompson, and Joseph B. Crasto. They all complained of ti e imputation made by the Court"proportionally" to the number of jobs.

The Surety Company op-oosed the report on the grounds:

lo that the Commissioner had failed to find that h'rs. Compagno had anticipated the fourth payment of $554.08;

2o that she was liable for extra work to an amount of $350.82, and

3o that the account of f. '.V. Carre was not credited by $51.95 amount of lumber returned on May 25th., 1917;

4o that the evidence fails to show that the materials claimed to have been furnished were used in the building; and

5o that "the Surety is entitled to have all the payments made to the several claimants during the construction of the building in question credited on the said accounts".

The report was filed on March 6th., 1918; the exceptions to it were fixed for trial for April 5th., 1913.

On Kay 24th., 1918, judgment was rendered increasing the amount allowed to Jordy.Bros, from $167.16 to $212.50, reducing the compensation of the Commissioner from $200 to $175, and in other respects confirming his report.

Devoe and Faynolds, Haindell, Scheibe, Carolina Portland Cement Co., Miller-Goll Manfg. Co., W. W. Carre and tha Surety Company appealed.

In this Court Haindpll prayed for an amendment of the judgment in hie favor from $170 to $215.

■ The account of Devoe iclBaynolds is proved with reasonable certainty. .. Their- assistant' manager testifies that he sold the articles himself to Markel and delivered them to him at the store,, and .that he 'stated that they were for the Cónpagno job, and the bills foi* the articles were approved by Markel. The •admission of the principal is priina facie proof against the Surety. 2 N. S., 422 (433).

■ But it is contended that Devoe & Kaynolds as well as Scheibe cannot recover béacuse their opposition was filed more .than ten days after the filing of the report.. The language of the lair is not susceptible of such interpretation. It says, sec. .10 of Act 52 of 1912 p 63:

"The parties shall have ten days from the time of the filing of the report to file'' exceptions thereto;- and if no exceptions are filed within that period by any interested party, the report shall stand confirmed on the next rule day after the ten days have elapsed! ¡i- ,, *

The report was filed March 6th., 1918; the ten days expired Monday, .March 17th; the next rule day was Friday, March 22d; the exception was filed March 20.

Assuming.that no action of the Court is necessary to confirm the report, we think the report remains open or exceptions up to the next rule day when alone it shall stand confirmed. The rule of practice in all cognate matters is that "when an act is to be done within a given-time, as the filing of ap_ answer and the IfEke, it may be done afterwards if nothing occurs to prevent it. Thus, if .a judgment by default has not been taken, an answer may be put into the merits, although more than ten days have elapsed from the service of citation*. 2 H. D., 1580; 7 La., 350; 22 A., 332; 35 A., 907; 41 A., 668; 6 A., 119; 7 A., 613; 3 A., 196; 11 A., 447.

Although the law prescribes that opoositions to an Administrator's account must be made "within ten days" from notice of the filing of the same, oppositions may be filed at any time prior to the homologation of the account. 9 La., 48, 57; 29 A., 378 (383); 14 La., 237 (240); 3 A., 384; 35 A., 907.

Where the police jury was authorised by law to appoint an attorney within thirty days and in the event the police jury failed to make the appointment within that time, the parish judge was to appoint, and the police jury made the appointment, after the 30 thirty days but before the judge had acted, it was held the appointment by the police jury was valid, 23 A., 786.

An opposition to the appointment of a curator filed ten days after notice is in time if made prior to the appointment. 6 A., 810; 33 A., 1137.

An opposition to an account has been likened to an answer. 27 A., 552; 28 A., 607; 29 A., 525; 30 A., 270.

But the failure to file an opposition cannot deprive one of the right of appeal. 48 A., 711. —

We shall now take up the grounds of opposition of the Surety Company.

lo As to the anticipated fourth payment.

The building contfcact reads as follows;

"$664 when the house is accepted and completed".

The fourth payment was made on Kay 18, 1917. ' We have already seen that Mrs. Conpágno, on June 29th., subscribed a document and recorded i.t, by which she declares that on May 18th., 1917, she had accepted the completed.building. There is nothing to show that the building was not accepted by her ’as completed on that day. If that is true, then the payment was correctly made. As between the owner and the contractor, the completion of the building entitled the latter at once to the fourth payment. He was not bound to wait for the owner's acceptance, if unjustified. But the surety contends that the time of payment could only, date from the recordation by the owner of her "acceptance" under the Acts of 1912 and 1916. In relation to this"acceptance" the Act says: "until which time the delays to file' liens will not run". In interpreting these words the Supreme Court has said in Dreyfous vs American Bonding Co., 136 La., 498:

"The whole and sole purpose of the registration of this notice is that it may serve as a starting point for the delay of 45 days within which the liens must be filed".

The owner has no right, to require the contractor to wait for his payment until he has recorded his acceptance. The owner may or may not record his acceptance. It is a provision in his interest; a barrier against the attacks of materialmen which he may or may not erect. It is a natter between him and the materialmen, and not between him and the contractor.

2o B:ctra work;

Jones testifies that he furnished an electric bell not on the plans, worth $3; this sure will reduce his claim against the Surety to $37.50.

G-oll testifies that be made a bid of $325 for the frames, sash, doers, and blinds, called for by Markel to execute his contract; he afterwards furnished additional materials to the amount of $55.82 called for by Markel. The Surety contends that this last sum should be considered as an "extra" and rejected as against it. There is no evidence that the materials representing the $55.82 were not necessary to complete the contract; or in other words that they were needed to make extras, or work not provided for by the contract. There is no presumption that they wBre for extra work.

The same may be said of the claims of Scheibe for $13.25, and of W. VV. Carre for $275.75.,

3o We find a credit of $51.95 on May 25th., 1917 for return of lumber from Fourth and Marine - on bill of W. ¶. Cerre.

4o The testimony makes it reasonably certain that all the materials charged for were used in the building.

5o The last contention of the Surety is that several of the materialmen had several outstanding accounts with Marks] for materials furnished to several distinct and separate jobs prior 1o and during the period of this contract which Markel still owed them; that after the materialmen had furnished materials to perform this contract, they received from Karkel payments of sums of money; that the materialmen applied these payments to the extinguishment of the claim» against' Uar-kel of longest standing, while, according to law, they should have imputed those payments "to the debt which the debtor,«^lar*-kel) had, at the time, most interest in discharging of those that were equally due",; that, according to law, the debts due by Karkel for materials furnished to this building-were the ones Karkel bad most interest in discharging becuase their payment was secured by a Surety, and thereofe these materialmen should have credited or imputed these payments to the extinguishment of the claims herein.

The rules relative to imputation of payments are contained in the articles of the Civil Code 2163 (2159) to 2166 (2162).

According to them the debtor of several debts has the right to declare when be makes a payment to which one of the several debts he wants the payment to be imputed. C. C. 2163; C. N., 1253.

When the debtor has not designated which debt he wants to pay, the creditor may at the time of payment make the imputation by giving a receipt by which he imputes the payment to one .of several debts; and when the debtor accepts such a re-cdipt, he can no longer require that the imputation be made to a different debt. C. C. 2165 (2161); C. N. 1255.

But it is necessary that the receipt itself should designate the particular imputation; it is the receipt itself which controls. It is also necessary that the receipt should have been accepted. It is the receipt and the acceptance and acquiescence in it that is equivalent to a contract. 33 Dalloz Rep. Leg. p 452 § 2022, 2023; 3 Dalloz C. A. Art 1255 § 1; 28 Demol § 35; 3 Laromb. p 423 § 3 and 4; 12 Duranton § 193 p 304; 115 La., 1063; 6 R., 124. Therefore until the debtor has received the receipt he may reject the imputation made by the creditor. Pothier Oblig No. 566; 15 A., 526; 2 A., 24, 820.

When the imputation has not been made either by the debt- or or by the creditor with the consent of the debtor, it is made by law in accordance with the four following rules:- C. C. 2166 (2162);C. N., 1256:

lo \?lien some of the debts are due, and others are not due, the imputation must be mad.e to the debt which is due, although less onerous, in preference to the one which is not due;

2o Between several debts which are all due or not due, the imputation must be made to the debt which the debtor bad at the time of payment the most moral or pecuniary intdrest in discharging.

3o If the debts are all due and of a like nature, the imputation must be made to the debt which has been longest due.

4o If all things are equal, if all the’debts are due, and of equal date and nature, the imputation is made proportionally.

The French commentators are unanimous in thier opinion that the debtor has the most moral and pecuniary interest in discharging his debt secured by a surety.for the reason that he is bound in honor to protect his surety, that he is subject to an eventual recourse by the surety, and that by paying he discharges himself towards two persons, the creditor and the surety. 4 Aubry & Rau p 167; 12 Baudry - Lacantinerie p 620; 28 Demolombe § 48 p 41; 12 Duranton p 313; 17 Laurent p 602 § 619; 14 Merlin p 197 § III; Pothier Oblig No. 567 § 4; 7 Toullier § 173, 179 p 251; 2 Domat p 245; 2 Denisart p 706 § 6; 33 Dalloz Rep. Leg. p 454 § 2030; 37 id p 128 § 464.

The debts due by Karkel to the matefialmen in this case were secured not only by a Surety but by a privilege upon the contract price and upon the building to be erected. By paying the materialmen, Merkel liberated not only himself but his Surety and the owner's! property. He therefore had a preeminent interest in discharging these debts.

The debtor of several debts in the absence of consent to the contrary from him, has therefore the right to have a psyment made by; him applied in the manner provided by law. 12 Duranton § 196.

’ To the same effect are Abadie vs Poydras, 6 N. S., 26, and Denis vs Ramouin, 1 R., 318, and Dunlop vs Tarkington, 5 A., 569 and Forstall vs Blanchard, 12 La., 1; N. O. Ins. Co. vs Tio; 15 A., 174, 457; Spiller vs Crs,; 16 A., 292; 25 A., 315.

The burden of proof is upon the creditor to show the debtor’s consent to the? particular imputation made by the creditor. # A., 569.

In the Forstall case an imputation made by the creditor to a matured debt on an open account was maintained against a verdor’s claim not due. Also 15 A. 457; 10 La., 232.

In Johnson vs Sterling, 3 N. S., 483, the Court credited a note of the defendant bearing ten per cent, interest in preference to an open account due by him, - and said on p 487:

"As no imputation was made at the time of payment by the consent of the debtor, the money must be anulied to the obligation he had most interest in discharging". Also 10 La., 357.

In Wicker vs Croghan, 4 N. S., 79, the Court 3aid that the payment on account made by the defendant must be first imputed to the first debt which was secured by a mortgage rather than to the second which was not; and this for two reasons, that the first debt was the most burthensome and was also the oldest, citing Article 156 p 290 of the Code of 1803 which is in the same words as Art. 2162 of the Code of 1825 and Art. 2166 of the Code of 1870.

Although imputation is made in the interest of the debtor, it would seem 'that third persons in interest, such as sureties and mortgagees, may require the same imputation to be made which, the debtor himself might have demanded under Article 7166-, when the debtbr himself has not made any imoutation. 7 Toullier p 255 185; 1 R., 318; 17 Laurent p 599 614; C. C. 3060 (3029); 104 La., 231; 18 A., 544; 16 A., 292; 15 A., 526; 6 A., 774; 430; 2 A., 874, 520, 24; 6 Rob., 124; 10 La., 356, 352, 232; 6 N. S., 26. 30 Cyc 1251-1252 12 Ct App 15.

The case of Miller vs Steaner, 16 A., 375, cited by counsel' for applellant, while apparently sustaining his position, is merely á statement of Articles of the Code and of an opinion of Supreme Court of Maine and of Pothier, but assists him in no manner. The transcript in the Sunreme Court Ho. 68.35 shows that the preference claimed by Adams was denied both by the District Court and by the Supreme Court.

But the case of Burbank vs Buhler, 108 La., 39, supports appellant,. The facta in that case were as follows. The plain-, tiff hele! two notes of $5000 each drawn by Joseph Buhler and by Ernst in solido, secured by a mortgage dated in 1887; Ernst subsequently assumed to nay these notes; olaintiff also held three notes of Ernst for $30,000 secured by a mortgage on the same pronerty dated in 1896; he also held unsecured notes of Ernst for $15,000; the pronerty mortgaged was insured and the policies were transferred to plaintiff; the property mortgaged was destroyed by fire, and the insurance money was paid over by Ernst to Burbank "without giving him any instructions as to what particular notes to impute the payment". Burbank imnuted the money to the payment of the second mortgage-notes of Ernst of 1896 and to the unsecured notes of Ernst; none of the insurance money was imputed to the first mortgstge of 1887, which apoarantly remained due in its entirety. Burbank then foreclosed on the two first mortgage notes of $5000 each; the property mortgaged was sold by the Sheriff, for an amount insufficient to pay both notes; there was a balance due of $3679.74. Joseph Buhler died prior to the Sheriff's sale, and the defendant, Christine Buhler, his child and heir, was sought to be held liable for that balance in those proceedings. The District Court decided that the plaintiff, under Article C. C., 2166, should have applied the insurance money received by him to the payment of the first two mortgage notes of $5000 each dated in 1887 rather than to the second mortgage and unsecured notes; and, considering that done which the law declared should have been done, it decreed the first two mortgage notes paid. The Supreme Court affirmed the judgment - upon the ground that the policies of insurance Had been transferred as collaterals to Burbank, and that he had no right to divert the proceeds. In the course of its opinion the Court said:

HvíiP ff* Wj 05 3/0 cd* ÜJ = ? o 1 o-jb o d-p 4 ct'íd c+ • o3 3 CS a QJ <5 CD c*-*3 P ca 3 cs* 3 ® V-* 4 ^ • M-Hi+ffl c1-® O o Ofll "J a 3^*3^© cí-cj o cd o • 0*<í p CD CD' *• ch- CJ*> — I cn ca “5 hj cd a) <-*- ? (o o o cd • »(3 :3 íro K¡ HÍ5 3 M. O CD > — »3 *-j to .. <£ 0Q p o o 3 o cd a* "dT® P o «■*• “b^CD < g ® 3 H<0 CD H.MQ *3 cro *3 CD CO P H-*<¡ w-o!®0¿^0 << Oí: (+ 3 W i — hj c-i-Í3 C+-5 — *rj O Hv! w«.-^ >T*ct-CO w- CD i-j.<y>- (_j pjp o; wj O l-tjc-)* p (+C g 3 rri-r*H-.co o 3*^3 cd * «3» SI Úl >3 5*!5 P <D O *3 ” CD O © ^ c1-vspad aw. ¿5 c**« gj 303081 w íj o ct- p cd a o 3 "5 ct-Or-* 3 a p-j 3T M-.Q ! — 1 c. W*.p 3- „ 0¿a)t-{j3pií-i-J oJcJ“3' s 3J CD >->.*• ¡ — ' c'' O cd- S3 CD o 03 C*~ Oj-i.’-JO<-^-’3 3 ^“c+q+Cfi •yo O 3 *3 M-CD C5 CD w-w-Tw-X S-U O O 3 C ^ O p, < W’-d JJ o 3 >-b Oj3 m. a o m *3 •3 M- - P.chu.p OOJ O 3 !+ Í5 O ^ yJm J3 <-•) <5 Jl Í ? O O O O 0 0 3 *3 cd-3 p P cd- wj ao-^^a ch o a ° © < ov; o m.o a¡\<¿ cd C3pc*-o 3 » O p .c a « » C-MÍ3*3 cr. 33*3 C/vD o ill w.® o ¿i.- 53 r*- Oi P v->*CD c*-’T* w*. o' M 4 *-5 o cr*o O _ a) m* a> c>-wj i.i. ryw-j: a r+2 3 3 < o p CD 3 c+ yoa . CD CH »• *• cd* O -3 PLK* ¿i P *3*0 P3 Íi o O ®-3 ‘t4 a* rs cd ®^o3 dealings with each other when their own interests alone áre to be effected, than they are when.the interests of persons other than themselves will be made to suffer. In Griffin vs His Creditors, 6 Rob. 234, this Court saids "We are referred to the'rules laid down in the Code for the imputation of payments when two debts are of the Same nature end equally onerous. Those rules which are to govern in the settlement of accounts between a debtor 'and bis creditor cannot clearly be enforced to the prejudice of third persons". We find it declared in Calloz and Yeggs Codes'Annotes, under Art. 1255 C. H. O-o. 7); "Les.tiers interesaos ne sauraient étre lies oar 1'imutation que le creancier a fait a leur prejudice".

The c enrol eta quotation translated íb as follows:

". . . Article 1255 (C. C. 2165) controls only the relations between the debtor and creditor, as regards imputation; this results from the text itself. As. concerns interested third parties, they cannot be bound by the imoutation made by the creditor to their oreju-dies". 35 Dalloz Rep. Leg. p 452 § 2024.

In the case before us no imputation had been made by the debtor, and it does not appear that .he had consented to the imputation made by the creditor, or that the creditor had informed him of the iioputation he had made, or that he was aware of it. Therefore the debtor and his surety h.ave a right to demand the imoutation provided by law. 12 Duranton § 196.

It does not anoear by the record that the claims to which the materialmen imputed the payments made to them by Kerkel were secured by orivilege or surety or that ferkel had an equal or greater interest to discharge them thar the debts due for this building, and the burden of proof was uoon the materialmen.

The following materialmen had only one account with Kar-kel and received no payments on account, and are, therefore, not affected by the rules of imputation, viz:-

John H. Gaignard, $185.00
I/illcr-Goll Co,, 380.32
Jos. 3. Crasto, 34.00
$599.82

The following materialmen had e running account with Kerkel, via:

Devoe ?; Reynolds. Between March 3th., and June 30th., 1917, they received payment,a largely in excess of their'claim thereby extinguished.

George H. Haindel has received $90 on account of three jobs. His claim should be reduced from $215 to $125.

The Salmon Brick & dauber Co. sold their materials for $33.50 on March 9th., 10th. and 17th,; on April 5 they rBceived on account $100. Their bill must be considered paid.

. Harry Scheibe received between March 9th. and June 23d. an amount far in excess of his claim. It should be rejected.

The same must be said of the Carolina Portland Cement Co. Their claim must also be rejected.

Jordy Bros- furnished their slates to the value of $225, on March 26th. oof May 28th.; subsequent to that time they received from Mark6l payments in excess of that sum; their claim must be rejected.

The Miller-Goll Manufacturing^furnished materials to the amount of $380.82 on May 29th., it does not appear that subsequent to that date they received any payments; their claim must be allowed.

J. W. Thompson sold materials from March: 3 to April 24th. to the sum of $117.24. From March 24 to July 7th. they received from Markel sums much in excess of that acmount. Their claim must be rejected.

W. W. Carre from March 13th, and thereafter furnished materials to the extent of $543.66. From April 4 to May 26, they received in payment a -sum exceeding that amount. Their claim must also be rejected.

We,therefore, hold that the only materialmen who have unpaid claims are the following:

Geo; H. Haindell $ 125.00'
John H. Gaignard for 185.00
Miller-Goll Manfg. Co. 380.82
Jos. B. Crasto 34.00
Howard J. Jones 37.50
Making a total of: $ 762.32’

And that, by the application of the law of imputation of payments, the following materialmen have been paid, namely;

Devoe & Reynolds 513.30
Saínen Brick Es Lumber Co. 33.50
Henry Scheibe 67.55
Carolina Portland Cement Co. 43.?.5
Jordy Bros. 225.00
J. W. Thompson 117,54
W. W. Cdrre 543,66.
Making a total of 5 1043.60

In coming to this conclusion, we feel that we are giving effect to the equitable principle enforced by us in Roca vs Caruso. 7 Ct. App., 451. In that cane we said:

", . , A furnisher of building materials, who knowingly receives from a contractor money earned under one contract, cpnnot impute such, nayment to any other account, even though older, as long as the debt incurrdd in connection with such contract remains ur.oaid".

In the case before us the materialmen simply ,aopIied. each payment to the debt longest cme,

Although positive knowledge of the source of the money-paid to them by Karkel is not brought home uo the materialmen, they could net feel that when í¡ ey applied money paid to them in one month to the credit of some old account na3t due that they were diverting the fund received by them from its legitimate dase tination and from one contract .to another.

It is therefore ordered, adjudged, and deerged that the judgment herein, except as regards the compensation allowed the Commissioner, be avoided and reversed: that the claims of the following materialmen be rejected and dismissed at their cost; Devoe and Raynoids, Saínen Brick and Lumber Co., Henry Ccheibs, Carolina Portland Cement Company, Jordy Brothers, J. IV. Thompson, and tf. J. Carre; that there be judgment in fp.vor of the following naced materialmen and against the United States Fidelity and Guarantee Company for the following amounts with five per cent, per annum interest from August 31st., 1917, till paid, and all costs of suit by them incurred, subject to a credit of 85S4H» deposited by plaintiff in the registry of the Court,via:George H.HaindellJbtr.M’j John H,Gaignard,8l85.00;Miller-Goll Manufacturing Company,$380.8 2.^« b. Crasto, $34.00 and Howard J. Jones, $35.50; and ordering the said Surety Dompany to deposit said .amount in the registry of the Court for distribution among said parties; it is further ordered that all the inscriptoos in favor of the above named twelve materialmen be cancelled and erased from the books of the Recorder of Mortgages.

It is further ordered that Thomas Connell, Clerk of the Civil District Court disburse among the above named five materialmen the amounts already deposited by plaintiff herein and those to be deoosited by the Surety Company, a]1 in accordance with this decree, subject to the oayment by them of the costs of appeal each for one fifth.

On Rehearing.

nuimu.-T, Txascra

The argument on rehearing has not changed our interpretation of Article 2166 (2162) of the Civil Code as given «^us in our original opinion and to which we adhere. But considering the complaint of counsel for the defeated materialmen that they have Been taken hy surprise hy the application of the law of imputation as made hy us and that it is in their power to show that the payments were imputed hy them to privileged debts^and believing that the ends of justice will he subserved hy furnishing them á full opportunity of so doing.

It is ordered that the judgment of the District Court appealed from and the decree of this Court herein are both reversed and set aside^and that this case he remanded to the District Court to he there tried and decided in accordance with the views expressed in the original opinion herein, with this addition^ that the imputation^ of payment to debts of equal dignity and date aheiii i4Me shall not be made in proportion to the number of debts hut in proportion to the amount of the several claims. 28 Demol p. 45S 53; 12 Duranton * 194; and that the burden of proof shall lie with the materialmen to show that the imputation hy them ma.de was according to law;

It is further ordered tha.t the costs of this appeal he paid hy the materialmen.


author: Max Dlnkelsnlel. Judge.

text:
    STATE OF LOUISIANA COURT OF APPEAL.
    GASPARD CUSACHS, et al., Appellants, versus COLUMBIAN NATIONAL FIRE INSURANCE COMPANY, Appellee.
    No. 7448.
   a 1111 o i

Max Dlnkelsnlel. Judge.

Plaintiff* sue tie Columbian Rational Pire Insurance Company, _a foreign corporation domiciled in Michigan, claiming under a policy issued originally on the 26th of Kay 191V to one W. B. lancaster - who for valuable consideration transferred and assigned same to plaintiffs in this cause - insuring said "1. B. lancaster from loss by fire on a policy issued by the defendant on property situated in Mandeville, in this state; that the policy was transferred and assigned to plaintiffs, and that the company consented to said transfer and assignment, as appears from the assignment and transfers contained on the policy itself; that under the terms of the policy, loss was payble to the holder of mortgage note or notes as interest may appear, and at the time of the issuance and execution of the said policy of insurance against loss by fire there was outstanding a mofctgage note executed by petitioner, one E. J, Bagur, upon the lot of ground upon which the building was standing, in the sum of $1200.00, dated Hew Orleans, February 27th, 1917, properly endorsed "He Varietur" to identify it with an act of sale and mortgage passed before John Wagner, Rotary Public, February 27th, 1917, the mortgage note being paraphed by said Wagner, which note bore eight per cent interest per annum, and which said note and policy were filed as a part of the suit.

The petition goes on further to state that Bagur was then and is now the true and lawful owner of the lot of ground securing the aid mortt --e note, together with all the improvements thereon and all the real vdS pem Property covered by insurance against lsss by fire by ' ' of the said policy hereto annexed and fully described . that on or btn-t December 20, 1917, a lire broke out in sail premises, 'which fire totally destroyed the building aforesaid and all the contents " thereof, making your petitioner's loss insured against fire under said policy herein a total loss, and that the said building insured herein cost more than the sum of $300.00; that your petitioners notified the defendant company to send an inspeotor and adjuster, and offered to go into an adjustment with the said company of the loss under the said policy, and the said defendant did actually proceed to adjust the loss, and within a short period thereafter, the exact date of which your petitoners are unable to give, furnished petitioners with the proof of loss, which your petitioners filled out and filed with said company; that thereafter petitioners awaited the payment of the amount due under the said policy aforesaid in accordance with the policy and the proof of loss filed by them, but the defendant notified them on Kerch 26, 1918, through their attorney, and through their adjuster, one J. J. Zennedy, that they denied all liability under the said policy, and petitioners aver that the grounds of denial of liability were untrue and incorrect.

Petitioners allege further that they have fully complied with and fulfilled all the terms and covenants and conditions of the said policy, including the payment of the premium demanded by said company at the time of the issuance of the said policy, and with all other stipulations agreed to be performed by your petitioners, or either of them, with repect to the said contract of insurance;further allege that more than sixty days have elapsed from the date of the notification of the loss of your petitioners under the said policy, and that the said company has failed and neglected to pay the amount of the said policy to your petitioners, but, on the contrary, declined to do so, and that under the terms of Aot 168 of 1908 your petitioners are therefore entitled, by reason of the active violation by said defendant of the terms of the eon-tract ana of the law, to claim the loss sustained hy them together with damages for the total amount of the loss in the sum of twelve per cent, and twenty-five per cent attorney's fees, which is alleged to he a reasonable amount for the prosecution of the rights of your petitioners, - together with legal interest from December 20, 1917.

They pray that the defendant be duly cited according to law, through its proper officer, or through the Secretary of State of Louisiana, to appear and answer unto this petition, and for judgment after all due proceedings had, and for general relief.

CITASIOH: "On the 4th day of April 1918 srved a .copy of the within citation & accompanying petition on Columbian Rational Fire Insurance Company, defendant herein, by personal service on Rebt J. D'Aquin, Secretary of'D'Aquin's Insurance Agency, its agent.
"Returned same day.
"John C. Tilla
"Deputy Sheriff
"of Orleans Parish."

In due course, defendant filed exceptions:

That without admitting the jurisdiction in this Honorable Court ratione personae or ratione materiae, your exceptor excepts for wait of citation and to the fora and manner of attempted oitation of this exceptor in this cause, claiming an incorrect and null and void attempt at citation was made by serving a copy of the petition and a form of summons or citation upon one Robert J. D'Aquin, as secretary of the D'Aquin Insurance Agency, purported to be agent of exceptor with authority to be served with citation, whereas said purported agent and its secretary were without authority, by appointment or by law, to have citation served upon it on behalf of exceptor; because the Honorable James J. Bailey, as Secretary of State, is, and was, the sole and only agent . for the service of citation of the said company in the State of Louisiana.

Defendant then proceeds further to except, pleadir.fr:

And solely in the event that the above and foregoing exception he overruled, and the citation held good and binding, then, and then only, as an alternate exception, your exceptor excepts to the said petition and shows that the Honorable, the Civil District Court of the Parish of Orleans, is without authority, power and jurisdiction, rations personae and rations materia^ to hear and determine the issues and things set forth in the said petition, or over the person or property of exceptor, because:
By Act Ho. 71, page 187, - being an act amendatory to Article 165 of the Code of Praotioe, paragraph 10 of said act, it was and is specifically provided that all suits on a policy of fire insurance must be brought, and the defendant insurance company must be sued, 1st: at the domicile of the insurance company, which domicile is averred to be in the State of Michigan, and which is in the State of Miohigan; 2nd.; or in the place where its principal agency is established, your exceptor showing that the only principal agency which this ex-ceptor has is that established under the provisions of Act 105 of the year 1908, by and under which the Secretary of State, and he alone, is designated and yw* made the sole and exclusive agent of exceptor for the purpose of citation, which said agent, and the principal agency thereby established, is in the City of Baton Rouge; 3rd: or in the pariBh where the loss occurred, which, in the petition, is averred to be in the town of Man-deville, in this state.

Finally, defendant prays:

First, that the exception of want of citation he maintained; and
Second, if the first said exception he not maintained, then that the second exception he considered and maintained, as an alternate exception; and, finally, that plaintiffs' petition he dismissed at plaintiffs' cost.

Act 267 of 1914, provides:

For the admission into the state of corporations formed in other states of the Union and elsewhere, and the liahilitles, duties and obligations of such corporations when admitted into the state.

Section f. o'* the said act provided:

To confer upon the courts of this state jurisdiction and authority over all matters connected with the organization, management, conduct, acts and dissolution of corporations, both domestic and foreign, and their officers, agents and employees.

Section g provides as follows:

To confer upon the Secretary of State, the Attorney-Seneral and other officers of the state authority over all matters connected with the organization, management, conduct and other acts and the dissolution of corporations, both domestic and foreign, and their officers, agents and employees.

Section h. provides:

To provide for the manner in which corporations and their officers, agents and employees may he served with legal process, and the manner in which they may he brought into court in the absence of such service, and to fix the venae of all suits against them, and to fix when prescription against corporations shall be interrupted.

Section 16 provides:

That the president, tice-President or manager of any corporation organized under the laws of louisiana, or of a foreign corporation doing business in this state, shall have power . . .

Section 23 of the act provides:

That any corporation formed in any state . shall be entitled to a certificate from the Secretary of State, authorizing it to exercise the- same powers, rights and privileges as are accorded to similar domestic corporations organized under this act .

Section 24 provides:

That any foreign corporation, or the agent of any foreign corporation who shall do business in this state shall be guilty of a misdemeanor for not complying with the preceding section.

Section 25 provides:

That service of all legal process on any corporation subject to the provisions of this act may be made in this manner:..

Again:

If the- cause of action results from any other cause, the venue of the action shall be in the parish where is, or was located, the particular office which had supervision of the transaction from which the cause of action arose or at the domicile of the corporation, at the option of the plaintiff.

She exceptions filed hy the • defendant, want of citation, and, in the laternative, should this exception he overruled, want of jurisdiction:

In the court a quo, the judgment rendered reads as follows:

"OR EXCEE2I0B SO SHE JÜRISDIC2IOJJ:
Said exception, herein filed on April 22nd, 1918 in hehalf of the defendant, having been tried and submitted to the Court: .
It is ordered by the. Court that said exception be, and same hereby is, maintained; and accordingly it is ordered, adjudged and decreed that there be judgment herein in favor of defendant, Columbia national Eire Insurance Company, and against petitioners, Gaspard Cusachs and E. J. Bagur, dismissing said petitioners's suit, with costs as of non suit.

In our opinion, the judgment of the lower court dismissing the suit does away with the exception of citation. Our Supreme Court, in the 39th La. An. Reports, in the case of Edward Conery et al., v. the New Orleans Water Works Company et al., at page 770, in the syllabus, which is .carried out in the opinion, said:

"Where an exception is filed denying the capacity or right of the plaintiff to sue or stand in judgment, and together with thiE exception an answer to the merits or a peremptory exception determinative of the suit, this court, on reversing that judgment, will remand the case to be tried on the other issues raised by the pleadings."

And in the 115 La., at page 911, City of New Orleans v. New Orleans Jockey Club, - again from the syllabus:

"Where a distinct' issue, raised by way of defense, has been categorically'disposed of adversely to the defendants by means of a final judgment, which, maintaining another defense, dismisses the suit, and the plaintiff alone appeals, whilst the defendants neither join in the appeal nor answer it, praying for amendment of judgment, the issue thus decided is eliminated, so far as the appeal is concerned, since the ruling thereon cannot reversed without amending the judgment appealed from and the judgment cannot be amended to the prejudice of ’ the appellant and for the benefit of an appellee who has not asked for such amendment in the manner provided by law."

The matter of citation being therefore dleposed of, it follows that the defendant waa duly cited in the pariah of Orleans; that íb to say; the defendant was found, in the parish. Being a foreign corporation, and having (according to its own contention) no known place of residence in the stats, it was properly sued before the court of the parish where it was found, l'his ie the text of the fifth paragraph of Article J.66 of the Oode of Practice as amended by Aot 71 of 1914 p. 188.

It is contended however that the tenth paragraph of the same article modifies this rule as to Insuranoe Companies. We think not.

XXX

Skat paragraph reads, "In all suits on a policy of fire insurance, the defendant may be sued at the domicile of the insurance company, or in the place where its prinoipal agency is established, or in the parish where the loss ooourred x x."

As this paragraph applies as well to domestic as to foreign-corporations, it is clear that the purpose therepf was to extend, not to reBtriot. the venue of suits upon insuranoe polioies; in other the the evident purpose of the amendment was simply to affordj^sured the additional privilege of bringing his suit in the parish where the fire ooourred. See also 115 La. 925.

BSjfcif -Be that as it may, it is olear that it was never the purpose of the amendment to allow a foreign insuranoe company by failing to establish a "prinoipal agency" within the state (as this defendant claims to be the case with it) to restrlot the venue of suits upon Its policies to the single, parish where the loss has ooourred.

Bor it is olear that the appointment of the Seoretary of State as its attorney for the service of citation, does not constitute the office# of the Seoretary of State its "prinoipal agenoy"; the words of the statute being clearly meant in the sense of Constitutional requirement, to wit, a "place of Business". Const Art 264.

lie think a foreign insuranoe oompany may be sued in any parish in which the plaintiff can suooeed in serving it, particularly whore suoh insurance company has failed to establish some certain place of business as its prinoipal agency

And accordingly we think the distriot court had jurisdiction in this oase.

It is therefore ordered that the jdgment appealed from be.reversed and the oase is now remanded to the oourt a4ua for further proceedings ’ooording to law.


author: By his Honor John St.Paul.

text:
    NO. 7451.
    GEORGE K. PRATT VS L. GRAHAM CO. LTD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

      March 27 1919.
   OPINION

By his Honor John St.Paul.

On April 20th, 1911 the proper officers of the City of ITew Orleans issued their certificate showing that certain paving had Been completed on Common Street between i'ront and iiagazine and that $179.70 was the portion of cost chargeable against the property designated as Lots 13 and 14 in Square 132, measuring 42.16 feet front on Common betv/een tchoupitoulaf. Streets by CO.OS feetcin depth towards Gravier Street.

On June 15th, 1912 the paving contractor assigned the certificate and the claim evidenced thereby to the pinin' iff herein, v;ho brings this suit to recover the amount thereof.

tho paving was laid and when,. Tho answer admits that at the time, the certificate issued # defendant was, and still is, the owner of the very same property above described; and the only defense herein set up is that the certificate sued upon are null and void because they wore issued in the name of one who was not the owner at the time the paving was done or the oertifioate issued; the fact being that the certificate issued in the form of a hill addressed, to ere A. D. Dennis, one time owner of the'property, but no longer so.

The contention seems to v.c: unfounded. It in well so tiled that local assessments are charges solely age3nr,i the property affected and not against the owner thereof. Barber Asphalt Co vs Watts, 51 An 1346; Moody vs Chadwick, 52 An 1888. In this caso tho very statute under which the paving was- done Laicos it clearly so. Act 156 of 1906, p. 272 in fine.

Under the cireunstanc-s It is quite icmateri"! ’"ho "a" described as the owner since it does not appear that any one has been or will be misled or prejudiced by the error. Kendig vs Knight, 14 N. W. 80 (Iowa); Masonic Building Ass'n vs Brown, 41 N. E. 310 (Mass)

The judgment appealed from fixes no personal liability on defendant and is therefore correct.

Judgment Affirmed.

New Orleans, La,


author: CHARLES P. CLAIBORNE, JUDOE.

text:
    Charles F. Claiborne, Judge.
    ALVIN E. MASSMAN vs. MICHAEL J. LYNCH, APPELLANT.
    No. 7454.
    March 6th. 1919.
   CHARLES P. CLAIBORNE, JUDOE.

This is a suit for rent for $175 with eight per cent er annum interest and ten per cent attorney's fees. It was filed September 28th, 1917. The defendant admitted the claim, but averred that the plaintiff had agreed to accept in payment $16 per month in notes with a good endorser; that in compliance with said agreement defendant made eleven notes of $15 each and one of $10 endorsed by a solvent surety, which he tendered to plaintiff who refused to accept them without lawful cause, and in violation of his agreement-; he filed said notes and asked that plaintiff's suit be dismissed.

Judgment for plaintiff as prayed for was rendered June 10th., 1918 and defendant has appealed suspensively.

The defendant, as a witness, says that "there was no agreement" between him and the plaintiff as to the notes he was to give; that he tendered notes signed byhis wife and Mr. Wysong, as endorser, which plaintiff's attorney refused to accept.

The plaintiff testified that the defendant offered to make monthly payments of $15 each, with one of two endorsers whom he named; that plaintiff accepted his offer and the endorsers named. Plaintiff's attorney corroborates this testimony, and adds that on the morning following the above agreement the defendant presented the notes, endorsed by a different person from either of the two accented by the plaintiff upon the day before; that he refused the new endorser as he knew nothing of his financial responsibility, and that defendant refused to pay or give any other security; whereupon he filed the present suit.

The defendant has filed no brief and has made no appearance in this Court.

The plaintiff has asked for damages for a frivolous appeal. We think he is entitled to them. C. P., 887, 907, 1138; 1 H. D., 101.

C. P. 1138:

"The appellate Court may, in its discretion, when the appeal has been taken from a judgment, sentence the party appealing to pay not more than ten per cent as damages on the amount of the judgment appealed from, over and above any interest said judgment may bear, if it shall appear that said appeal was frivolous or takfti for delay."

In the following cases the Supreme Court has said that where the judgment bears the highest rate of legal or conventional interest, only five per cent damages shall be allowed. 12 La., 420; 13 La., 426; 14 La., 347; 15 La., 445; 16 La., 565, 569; 17 A., 77; 38 A., 376; 30 A., 400; 21 A., 386.

We will follow their conservative action.

It is therefore ordered that the judgment herein be affirmed with five per cent damages upon the amount thereof in principal.

March 6th. 1919.