Brice v. D. H. Rutledge Hemenway Furniture Co.

2 La. App. 771, 1925 La. App. LEXIS 263

• Court: Louisiana Court of Appeal
• Decided: June 6, 1925
• Docket: No. 2365
• Status: Published

Opinions

STATEMENT OF CASE.

REYNOLDS, J.

In suit No. 16,535 on the docket of the Ninth Judicial District Court of Louisiana, Parish of Rapides, L. L. Brice sued D. H. Rutledge for $117.00 rent and on open account for $52.00 and obtained writs of provisional seizure under which all of the furniture on the rented premises was provisionally seized.

Judgment in favor of the plaintiff for $50.00 on the open account and for $117.00 on the rent account and recognizing plaintiff’s lessor’s privilege on the property seized and ordering it sold and the proceeds applied to plaintiff’s judgment for rent in reference to all other claims wa3 signed by Judge R. C. Culpepper on February 13, 1925.

On January 20, 1925, Hemenway Furture Company, Limited, intervened in suit No. 16,535, claiming judgment against D. H. Rutledge for $498.70 for balance due on the purchase price of the furniture seized and claimed to be paid by preference out of the proceeds of the sale thereof by virtue of its vendor’s privilege and a chattel mortgage on the furniture.

On these issues the case was tried and there was judgment in its favor and against D. H. Rutledge for $498.70 and recognizing its vendor’s privilege and mortgage on the property seized and ordering the same sold and intervenor paid out of the proceeds thereof in preference to all other creditors except the judgment of L. L. Brice for $117.00 for rent.

From this judgment Hemenway Furniture Company, Limited, appealed.

OPINION.

The question first presented is as to the imputation of payments made by D. H. Rutledge to L. L. Brice.

These payments were credited by Brice on his open account.

Intervenor claims that the cash payments ¡made by Rutledge to Brice should have been -.imputed to the claim for rent and. that it extinguished it, for the reason that .the .rent account was the most onerous debt, and that the payments were made, without any agreement as to how they should be credited and that therefore . the law imputed them to the rent claim, and insists with great earnestness that plaintiff gave D. H. Rutledge receipts from time to time without having any ■ imputation of.- payments on same and that therefore the law imputes the payments to the rent account.

This contention of intervenor, in our op.inion, is not sound, for the reason that the receipts referred to by intervenor are not -. receipts but statements . showing the balance due by. Rutledge and are in accordance .. with plaintiff’s account which showed that plaintiff, kept two accounts against D. -H. Rutledge, one an account for goods purchased and one for rent, and the credits that intervenor is now asking to have decreed .to have extinguished plaintiff’s rent account were at the time they were made credited by L. L. Brice to D. IT. Rutledge on his open account.

Plaintiff -testified, page 20:

“Q., Had you, at.any time previous to this, advised Mr. Rutledge as to the imputation of the payments made by him?

“A. I did.

“Q. Then he knew to what account you were crediting the payments made by him ?

“A. He did.

Plaintiff is corroborated in this testimony by the fact that he presented to D. H. Rutledge two accounts for the balance claimed by him, one showing $52.09 balance due oh open account, and one showing $117.00, balance due on rent account, and D. H. Rutledge signed each of said accounts as being correct.

From the decision of the District Judge we think that he accepted and gave weight to this testimony of the plaintiff, and we think his finding of fact was correct.

Having reached this conclusion,' as to imputation of payments, we find it unnecessary to. pass on the other issues ably presented in .the brief.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.