
    No. -
    First Circuit
    CLARK v. ALFORD
    (February 12, 1927. Opinion and Decree)
    
      (Syllabus •by the Editor)
    1. Louisiana Digest — Prescription — Par. 107.
    Under Article 3538 of the Civil Code the balance due on an open account is prescribed by three years.
    2. Louisiana Digest — Payment—Par. 11.
    Where payment is made on an open account with cotton, which was not sold by the payee until two years later at a smaller price, the payment was made at the price of the cotton at the time •' ' delivered, the delay in the sale of the cotton being due to no fault .of the one wh.o made the payment.
    Appeal from the Parish of St. Helena. Hon. Columbus Reid, Judge.
    • Action by W. L. Clark, Jr., against W. C. Alford.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Purser & Magruder, of Amite, attorneys for plaintiff, appellant.
    Robert Carter, of Greensburg, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that he sues for the sum of $207.87, balance due on an open account, beginning February 20, 1920, closed June 20, 1922, for money advanced at divers times and for overpaid balances on shipments of cotton during the year 1922.

Defendant first interposed the plea of prescription of three years as a bar to the demand; and thereafter filed an answer in which .he pleaded payment after making due reservation of his plea of prescription. The district judge rejected the demand, and without saying on which of the. two defenses he rested his judgment. A motion filed for a rehearing indicates, however, that the judgment rendered below was grounded on the plea of prescription..

The petition of the plaintiff is misleading, as it is therein alleged that the balance claimed is on a running account which began February 20, 1920, and closed June 20, 1922. The account, which is annexed to the petition, shows that the suit is for $100.00 loaned defendant February 20, 1920; $30.00 loaned July 13, 1920; and an item of $96.35 for ties and bagging in an invoice of July 16, 1920. Against the total of the foregoing items the account recognizes a credit in favor of plaintiff for $8.56 of date January .31, 1920. In what plaintiff terms closing his account, he strikes as of June 20; 1922, a balance in his favor of $207.87, including interest. There is, however, on the account no item for money loaned on articles sold after the date to which we have hereinabove referred, that is, July 16, 1920. The proof shows that in the latter part of 1919 defendant had consigned two bales of cotton to plaintiff for sale, one weighing 546 pounds and the other 585. Plaintiff sold one of these bales at 40 cents, which was applied to his account at that time, leaving ■a balance of $8.56 in his favor. Plaintiff sold the other bale in June, 1922, for $48.00, and applied the sum so received to the items which were advanced defendant to July 16, 1920, as above stated; and in closing his account plainitff struck a balance as of June 20, 1922, because of the application by him of the $48.00 received at that time for that hale of cotton. Defendant testified that, in 1920, he directed plaintiff to sell the hale that was left over) which the evidence shows would then have been amply sufficient to pay his account in full; that he told plaintiff if he did not follow his instructions and sell that hale, he would consider him paid for his advances. In this respect he is corroborated by the testimony of a witness who heard the conversation between defendant and plaintiff on this subject. It is therefore obvious that when plaintiff sold that cotton in June, 1922, and appliéd the amount received for it to the account of defendant, it was without the latter's knowledge and consent. As we have before stated, for the foregoing reasons the petition is misleading when it alleges that the balance claimed was for advances at divers times and for overpaid balances on shipments of cotton during the year 1922.

The last item on the account was for money loaned, ties and bagging sold on July 16, 1920.

This suit was brought in June, 1924, nearly four years from the last item carried on the open account sued upon. The account being for money lent and advances made, was prescribed in three years. C. C. Art. 3538. As there is n,o plea or evidence to show that the account was in any way acknowledged so as to interrupt prescription or to take it out of prescription, the plea should have been maintained.

Besides it is shown that had plaintiff obeyed the instructions of defendant to sell the cotton at the time they were given, the proceeds which would have been received at the prices then prevailing would have .been more than sufficient to pay the account. Instead of following these instructions plaintiff allowed about two years to elapse, and then sold at 18 cents a pound, .and got only $48.00 for the cotton. Plaintiff was told by defendant that if he did not then sell he would consider him paid for his account. If plaintiff had complied with these instructions he would have been more than paid, and it must therefore he held if his claim was not satisfied it was the result of his own fault, and that defendant is entitled to he sustained in his plea of payment.

The judgment is correct on either of the two pleas.  