
    
      NO. 8271
    
    COURT OF APPEAL PARISH OF ORLEANS
    AMERICAN MANUFACTURING COMPANY versus JACOBS & LANDRY ET ALS.
    
      
    
   Dinkelspiel; J.

Plaintiff institutes this suit against the defendants, •a.erring thst he is entitled to recover the aum of $652*30, with interest and costs, for this to wit!

£.— That plaintiff sold and delivered the sash doors, blinds 'and house finishing materials desoribed in the bill annexed to its petition, to one Oh- rles Pfister; that Pfister used the articles referred to,in the construction and remodelling of a the-atre at Leontina and Prytania Streets in this oity; that asid Pfister contracted with Jacobs and Landry for the repair and reconstruction of property owned by Mrs, Emma Gilmore; that Mrs. Gilmore has elected to take over the buildings as remodeled and reconstructed. That Jacobs end Landry did not reoord the contract it had made with Pfister in the Mortgage Office for the Pariah of Orleans, nor did it require Pfister to furnish bond to guarantee payment for the labor and material used in the remodelling of the buildings above described; that plaintiff caused its aooount for materials desoribed, to be sworn to and recorded in the mortgage of-fioe, serving a copy thereof on Jacobs end Landry and Mrs. Emma A. Gilmore. Hence preyed for judgment against all parties with recognition of its lien and privilege.

Defendants filed exceptions to plaintiff's demand beoause of a misjoinder of parties, because the petition was vague and indefinite and because it disclosed, nc right or cause of aotion. These exceptions were overruled. Subsequently defendant answered denying the allegations made by'plaintiff in its petition, averred that it he,d contracted with Charles Pfister to remodell the buildings desori’c -d in plaintiff's petition. That Jacobs & Landry were lesee»a of Mrs. Emma Gilmore, under a written lease, with the right to remodel and reconstruct the building thereon, of which Mrs. Gilmore was to beoome the owner. That Pfister had an open ao-oount with plaintiff, made payments thereon from time to time but Which were not credited thereto; subsequently Pfi3ter failed, plaintiff separated the account, inrauted the payments to ether accounts and gaye no credit tc defendants account. Wherefore they prayed thet plaintiff's suit be dismissed,

.Subsequently plaintiff filed s plea of estoppel sgainst defendants baaed on their conduct by their silence after examining plaintiff's books end not advising it of payments made by defendants to Pfister; hence, permitting plaintiff to adjust ell other Pfister contracts and accounts with his sureties under the belief that defendants owed Pfister the full contract prioe for their work.

An examination of the testimony in this case shows that Jaoobs and Landry contracted with Pfister to remodel and oonvert the buildings leased, into a theatre for the sum of Three Thousand Dollars; the contract between Jaoobs & Landry and Pfister, ±Jts was not recorded in the mortgage office, nor was Pfister, the contractor, required to furnish seourity as the lawersquires, to guarantee payment for material and labor used in the remodelling of the buildings into a theatre; Pfister began work on the buildings, ordered the articles described Which were manufactured for and delivered to him, used by him in the converting of the buildings on the property heretofore described.

Jacobs and Landry paid to Pfister, the amount of his oontract3 in six installments, of Five Hundred Dollars eaoh, by checks found in the record: Pfister had several contracts under way while doing the work for Jaoobs and Landry; kept a bank account, deposited the ohseks of Jaoobs & Landry and when oolleoted th&se collections were mingled with other funds on deposit.

During the progress of contracts Pfister had with other persons than Jaoobs and Landry, he paid monies by cash and check and.so doing, the evidence satisfies us that he-was required by plaintiff to designate contracts^'th’a.t he. wanted credited" with monies paid, Plaintiff kept a- ledger, also an order book, in wblob ail orders wsre entered and given a number by which they were identified; these orders were delivered end the total amount of the xxdaxxw orders were debited to Pfister on the ledger account under the number given it in the order book. Payments were made by Pfister and were o'redited to the particular order or contraot designated either on Pfister's oheck or on the receipts given him for monies paid. When Pfister failed to pay, plaintiff caused its account to be attested, recorded in the mortgage office and due notioe was served on Jacobs and Landry, and Mrs. Gilmore. Plaintiff further adjusted the Pfister accounts for his other contracts,- except onewlth the surities on bond furnished by Pfister; and the first information that plaintiffá had that Jacobs and Landry had paid Pfister the amount whisk due on their contraot, was given to them when this 3uit v;-:3 brought. Defendants do not deny that the materials charged were purchased by Pfister from pls.intiff;in cxxdsxxi neither do they dispute the’prics3 charged, nor ■io'they deny that the material charged for was actually used in the converting of the buildings on the property in question.

Pfister makes no defense.

The questions for determination presented are first, did Pfister pay plaintiffs monies and direct Jacobs and Landry work be credited Tilth the monies paid them? and were the items of account separated end the monies paid credited to other contracta, leaving the whole amount due on the Jacobs and Landry work and the liability of Mrs. Emma M. Gilmore for the materials used in the conversion of the buildings on the leased ground into a theatre? The testimony shows that esoh order for material as it was given was recorded in order book together with the location of the buildings to which delivery was mxst to Sta have been made and given a number, and subsequently aide when the order was executed and after the delivery, it 'was entered into, the ledger under identical number given in the order book. The evidence further shows tfc;t Pfiater made sss several payments to plaintiff on account of his contracts and tlist he did not designate or instruct plaintiff to credit any of the payments tr-de by him, to the Isfsnáx orders for material deliver! to defendants1 theatre. Therefore it is shown that whatever peymenta Pfister nade were applied to the credit and liquidation of the amount due "on the contracts to which Pfister directed plaintiffs to give credit fer the payment; and this pfister had a right to do. The evidence also shows that after one of the dependents examined Pfister1s account at plaintiff's esfcablishmsnt and seen th-.t no payments had been made on account of thair work end discussed the matter with the Mansger, nothing further w.s said by Mr. Landry one way’or the other. Defendants desire to make it appear that part of the monies paid plaintiffs by Pfister, were monies that they h?d ptid Pfister; tmxxss The checks received were always deposited for collection and the sctu.ly cash was generally used by him to pay hie 'workmen and laborers.

,0. C. Article 3185/proviies: Privilege can be claimed only for those debts to which it is expressly granted in this Code.

There being no contraoturel rclstionship between Mrs. Gilmore ?nd plaintiff, and considering that only at the expiration of the lease sha would the improvements revert to her and Article 3343 R. C. C. specifically pexsai provides:

"Privilege on Building and Lot. The Poove named parties shall have a lien and privilege upon the building, improvement or other work erected, and upon the lot cf ground not exceeding one acre, upon which the building, improvement or other work shell be erected; provided, that such got of ground belongs to the persons having such building, improvement or other -voris: saxasnsaá erected; and if such building, improv.menta 'or-other work is. c. used to be erected by a lesees of the lot of ground, in that cuse the privilege shell exist only against the lease end shall not effect the owner."
Conroy vs. Pineville Oil Co. 143 La. 883-4.
Eureka Homesteed Society vs. Widow Gregson, 13th Court of Appeal, 234.

Our Supreme Court in the recent case of Grand Lodge Benevolent Knights of America versus Murphy Construction Company and others, being No. 23547, not yet reported, held:

"Art. 2133; the debtor of several debts has the right to direot xxiali when he mokes a payment what debt he means to discharge.11

Citing'numerous authorities.

In the. same C5,se the Court held: "yucting from in re Mrs. Julia Cowpsgno, 7443 cf the Court cf Appeal, where this Court held: A creditor of several claims against the same debtor sxii all matured, receiving payment from his debtor must, in the absence of the consent of the debtor impute the payment so made to the debt secured by privilege or by a surety in preference to one not so secured, but the debtor end his surety may enforce this imputation. And sgain, "in the ease before us no imputation has been made by the debtor and it does not appear that he consented to the imputation made by the creditor or that the oreditor had informed him cf the imputation he had. made or that he was aware of it and therefore the debtor end his surety have s. ridit to demand the imputation provided by law.

An examination of the authorities cited and those th-.t vye have herein furnished, conclusively s&Sítísi&ataií&Sií establishes that there were no contraetura.1 relationship between Mrs. Gilmore and plaintiff, and therefore the judgment against her must he ansS@¥fS,.

But, as to the contractor and the lessees, Messrs. Jacobs and Landry, we are satisfied they are liable individually and in solido for tbe amount of. plaintiff1 s claim, and tbe judgment as against them is correct.

For tbe reasons assigned, it is therefore ordered, adjudged and decreed, tbs.t tbe judgment rendered by tbe Court a-quo ageinst Mrs. Emma M. Gilmore be amnulled and avoided , and the judgment rendered against Charles Pfister, and Jacobs & Landry, a commercial firm, oomposed of M. H. Jacobs and George R. Landry, are affirmed, the said Charles Pfister, H. H. Jacobs and George R. Landry, individually and in solido, to pay all oosts of both Courts.

-Judgment amended and affirmed-  