American Manufacturing Co. v. Massman

7 Teiss. 256, 1910 La. App. LEXIS 39

• Court: Louisiana Court of Appeal
• Decided: March 7, 1910
• Docket: No. 4910
• Status: Published

Opinion

ST. PAUL, J.

Plaintiff sold and delivered to defendant certain building materials as follows:

September 30, 1908........................$26.00

October 30, 1908........................... 73.00

November 11,1908......................... 15.00

These sales were all on a credit of thirty days.

On March 23, 1909, plaintiff sued and recovered judgment on the items of October 30th and November 11,1908,

On June 1, 1909, plaintiff filed this suit in which it seeks to recover judgment for the item of September 30th.

Defendant pleads that plaintiff by failing to include this item in the former suit lias waived and abandoned the same under the terms of the Code of Practice, Article 156.

Whilst it is true that at the time the first suit was, filed all three bills were equally due and demandable, it is none-the-less to be observed that the three bills were contracted separately and matured at different times thus constituting, not one single indebtedness but three several and entirely distinct debts.

March 7, 1910. Rehearing refused March 21, 1910.

We are of opinion that it is now the settled jurisprudence that Article J.56 of tLe Code of Practice merely prohibits the dividing of a single and undivisible debt into parts and suing on each part severally.

It has no application to separate and distinct debts, nor where a debt is divisible and the different parts or installments are demandable severally or at different •times.

Brandagie vs. Chamberlain et al., 2 Rob. 207; In re Dimmick, 111 La. 658.

It is, therefore, ordered that the judgment appealed from be reversed, and it is now ordered, adjudged and •decreed, that there be judgment in favor of plaintiff, American Manufacturing Co., and against defendant, Mrs. L. Massman, for the full sum of twenty-six dollars $26.00 with legal interest from September 30, 1908, and the costs of both courts, with recognition of plaintiff’s lien as furnisher of materials,' on the building owned by defendant and situated on the corner of Hickory and Cohn Streets in the City of New Orleans.