84 So. 571 | La. | 1920
In the course of his business dealings, Louis Artigues became indebted to the xYmerican Brewing Company on an open account. The brewing company also held a promissory note for $3,200 signed by Artigues and secured by mortgage on his property. The property was insured against loss by fire, and the policy contained the usual loss payable clause in favor of the mortgagee. A fire occurred on the 11th of July, 1917, damaging the building to the extent of $295, the amount for which it was ascertained the damage could be repaired. The insurance company paid the amount of the loss to the mortgagee; and, with Artigues’ consent, the amount was placed to the credit of his open account. On the 18th of July, 1917, the firm of Bendisch & I-Iemandez, building contractors, entered into a contract with Artigues to make the repairs for $295. Thereafter the work was commenced, and was partly done when, on the 22d of July, 1917, only four days after the contract was signed, another fire occurred, damaging the building to the extent of $1,300 over and above the damage and destruction of a part of the work done by Bendisch & Hernandez. The latter contended that they had done all but worth $48 worth of the repair work when the second fire occurred. There is other evidence showing that they had done only about $20 worth of the work when the second fire occurred. It is conceded that the repair work to be done by Bendisch & Hernandez was not completed when the second fire occurred, and that the fire destroyed a part of the repairs which they had made. The insurance company refused to pay for the damage done to the repairs which had been made by Bendisch & Hernandez, on the ground that they were independent contractors, whose repair work was at their risk until completed. .Having agreed upon the adjustment of $1,300 for the additional loss, the amount was paid to the mortgagee, who, with the consent of Artigues, credited the amount upon his open account, instead of crediting it upon his mortgage note.
Six months thereafter the American Brewing Company foreclosed the mortgage by ex-ecutory proceedings; and on the 7th of March, 1918, the mortgaged property was sold by the sheriff at a price about $132 less than the amount required to pay the mortgage note, with interest, attorney’s fees, and costs.
The contract between Bendisch & Hernandez, contractors, and Louis Artigues, owner of the building, was not recorded until the 6th of March, 1918 — that is, the last day before the sheriffs sale.
Because of the registry of the contract, the sheriff insisted upon withholding $295 of the proceeds of the sale. Thereupon the American Brewing Company proceeded by rule against Bendisch & Hernandez and the recorder of mortgages to compel a cancellation of the registry of the contract in so far as it purported to operate as a lien superior to the mortgage held by the American Brewing Company.
After trial the rule was made absolute ordering the recorder of mortgages to cancel the inscription of the contract of Bendisch & Hernandez. The latter appealed to the Court of Appeal for the parish of Orleans. That court decreed that the judgment appealed from should be amended by adding thereto that the civil sheriff should pay to Bendisch & Hernandez, out of the proceeds of the sale made by him, the sum of $242 and the costs of the proceedings. The reason for directing the sheriff to pay to Bendisch & Hernandez only $242, instead of $295, appears to be that the Court of Appeal concluded that the contractors had done only $242 worth of the work when the second fire occurred. The case is before
Opinion.
The Court of Appeal recognized that the registry of the contract between Artigues and the firm of Bendisch & Hernandez did not give the latter a preference over the holder of the mortgage on the property, because the contract evidencing the debt was not recorded within seven days after it was entered into, as required by article 3274 of the Civil Code to confer such preference over a mortgage already recorded.
Counsel for Bendisch & Hernandez cite the decision in Burbank v. Buhler, 108 La. 39, 32 South. 201, in support of their argument. The decision is authority for the proposition merely that an heir of a deceased debt- or has a right to complain of an unlawful or unauthorized imputation of payment that was made by the creditor without the consent of the debtor. The decision therefore is not authority for the proposition advanced by counsel for Bendisch & Hernandez that an ordinary creditor has a right to complain of his debtor’s having consented that a payment made by the debtor to another creditor was imputed to the less burdensome of two debts due by the debtor to the other creditor.
For the reasons assigned, the judgment of.the Court of Appeal is annulled, and the judgment of the civil district court ordering the recorder of mortgages to cancel the inscription of the contract between Louis Artigues and the firm of Bendisch & Her