2 La. Ann. 874 | La. | 1847
The judgment of the. court was pronounced by
This action was instituted to compel the defendant, as syndic of the succession of Maurin, to approve, and pay in the course of administration, the balance alleged'to be due upon two accounts-current. A privilege is also claimed for the entire balance due on the last crop of the deceased. A judgment was rendered in favor of the plaintiff for the greater part of his demand, but rejecting the privilege claimed, and he has appealed.
It appears from the evidence that, in 1843, the plaintiff mnde large advances to the deceased in cash and plantation supplies. The crop of cotton of the deceased produced in that year, was received and sold by the plaintiff. In June, 1844, an account was rendered by the plaintiff, in which the deceased was debited with tho several advances made, with eight per cent'interest on their amount, and with two and a half per cent commissions on the sums advanced. Tho deceased was credited with the proceeds of the cotton, whibh were applied to the entire extinction of the interest and commissions, and towards the payment of the advances for which no privilege is allowed. A balance remained due which, in a recapitulation at the foot of the account, is stated to be for plantation supplies, sums advanced to defray the expenses of a daughter of the deceased at school, and for cash to the deceased personally, and the amount of each fixed. The account, with this imputation, was forwarded-to the deceased, who approved it, and for the balance which is exhibited executed two notes, not, ns it seems from the evidence, for tho purpose of liquidating the account, but merely to enable the plaintiff to use them in business. Alter the account was thus closed, the plaintiff made further advances in cash and plantation supplies, on the amount of which he also charged eight per cent'interest and two and a half per cent commissions. Maurin died without-having acknowledged the correctness of this second account.
The defendant contends: 1st. That the, charge of two and a half per cent as commissions, and eight per cent as interest, on tho sums advanced is usurious; and that under the act of 1844. (Sess. Acts, p. 15,) he-has a right to recover back the interest thus paid. 2d. He denies that the plaintiff has a privilege on the crop of corn and cotton produced by the deceased in 1844, and contends that the proceeds of the crop of 1843, upon which a privilege did exist, were more than sufficient to pay that part of the account entitled to the privilege, and ought to have been so applied.
The items of both of the accounts for advances of cash and plantation supplies, are fully proved ; and the approval of the first account rendered, in which the proceeds of the sales of the crop of cotton of 1843, were applied to tho payment-of the commissions, interest, and other advances than those fo-r-which the law accorded a privilege,-was an imputation made by the mutual consent.of the parties. It was made at a time not suspicious ; and it is not pretended that the object of the parties was to secure an unjust preference to the plaintiff. The effect of this imputation was to leave the deceased indebted to the plaintiff for plantation supplies, amounting to SI,217 59, and for other advances.
The act of 1843, (Sess. Acts, p. 46) has extended the privilege established in article 3184, § 1, of tho Code, to “debts due for necessary supplies furnished to any farm or plantation.” Under tho construction given to the article of the Code thus amended, I his privilege attaches on the crop of the current
The two and a half per cent charged as commissions for advancing money must be regarded as interest. Added to the eight per cent charged specially , as interest the rate exceeds that which the Jaw allows, anda contract to pay it would be .void. 3 La. 393. 1 Ann. Rep. 265. The deceased, as we have .seen, paid this usurious interest, by .consenting .to an imputation of the proceeds of sales of a crop of cotton to its extinction. The act, however, of 1844, s. 2, (Sess. Acts, p. 15) permits sums thus paid to .he sued for and recovered, within twelve months from the time o.f the payment. The defendant filed his plea of usury within the time limited, and, under the provisions of the statute, the charge for interest and .commissions for advances in the first account, must he rejected. No-contract, is sho.wn in regard to the interest charged in the sec•.ond account. The plaintiff has .only claimed a higher rate than .the Jaw allows, which,is-no bar to his recovering legal interest, .to which he is entitled .on the .advances whichhe has made as a factor. Ante p. 363. C. C. 2994.
The judge below appears to have overlooked the testimony by which the .second account was proved. The advances, of which it is composed, should have been allowed, w.ith five per cent interest from the dates when they were made, and with .a privilege on the .crop .of 1844 .for .the sums expended for .supplies.
It is therefore ordered that the judgment.of the .District .Court be reversed. It is further ordered that the plaintiffs .recover the sum of $1,21,7 59., with a privilege on the proceeds of the crop of .cotton .and,corn .of Lewis Maurin, deceased, produced in the year 1844, without interest; .thathe recover the further sum of $206 11, with five per cent interest thereon, from the 30th day of June, 1844, with like privilege on said .crop of .cotton and .corn; .that he recover the further sum, as an ordinary debt, of $2,257 83, of which last named .sum only $150 is to bear interest, at five percent, from the 11th of .September, 1844, and the residue to bear no interest. It is further ordered that said sum be paid by the defendant in due course .of .administration; and that .the succession of said Maurin pay the .costs of both.courts, to be .taxed..
