
    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:

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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.  