175 So. 120 | La. Ct. App. | 1937
Montegut, in his answer, denied that the said Gardiner had been employed by him, but in his testimony conceded that he had given Gardiner employment ostensibly as manager of his business and had paid him $100 per month for a portion of that period, but maintains that he had done so purely out of friendship for Gardiner and not because of need for the latter's services, and contends that at the end of June, 1930, Gardiner, having acquired a small business of his own, he (Montegut) told him that he would not pay him any further salary but that he might remain in the premises and there conduct his own business.
In the court below there was judgment dismissing plaintiff's demand as in case of nonsuit and from this judgment he has appealed.
In this court Montegut has filed pleas of prescription of one and three years.
The prescription of one year is not applicable. If Gardiner was employed at all, it was in a clerical capacity. Under article
The last month for which salary is claimed by Gardiner terminated April 9, 1931, and citation was not served upon the defendant until May 14, 1935, so that considerably more than three years had elapsed between the time at which the final alleged salary payment became due and the day on which defendant was served with citation in this suit. But plaintiff, as an interruption of prescription, relies upon the fact that payments on account were made — one on May 16 and one on May 26, 1932. Defendant, maintaining that no interruption of prescription has taken place, contends that, since the salary of plaintiff became due from month to month, each monthly amount represented a separate claim, each of which prescribed three years from the day on which it was due; that the payments of May 16 and May 26, 1932, should be applied to the oldest accounts; and that, therefore, the claims for the final six months, which are the claims sued on, have prescribed, and prescription as to them has not been interrupted by the two said payments made on a different and earlier claim.
As supporting this rule, defendant relies upon several decisions of this and of the Supreme Court, all of which hold that, where salaries, or wages, or rents, are earned by the day, week, or month, the amount earned each day, or week, or month, represents a claim separate and distinct from each of the others.
In Sturgis v. Imperial Hotel (La.App.)
In Salnave v. McDonough's Ex'r,
In Cresap v. Winter,
In Dewar v. Beirne Co. (Court of Appeal Parish of Orleans) 1 McGloin, 75, this court considered a case which cannot be distinguished. There plaintiff sued for "balance due for wages * * * at the rate of $1.50 per day". The evidence showed that certain payments had been made to him and it was contended that these payments had interrupted prescription as to the whole claim. The court said:
"It is sufficient to say that the payments made to plaintiff in this case did not operate such an interruption. Plaintiff was employed for service by the day, and the amount due to him was not one obligation, but an accumulation or aggregation of obligations maturing from day to day, as each day's service was rendered, and the indebtedness for the service of each day constituted a separate and distinct obligation, prescribable when one year from the date upon which it had been earned had elapsed. The payment, therefore, of any number of such obligations, could not have the effect of interruption of the prescription of others which preceded or followed."
Thus, it is well established that where wages or salaries, or rents are earned on a periodical basis, the amount due for each period represents a claim separate and distinct from each of the others, and that, as to each, prescription commences to run from its due date unaffected by anything that may be done concerning any other similar claim for any other period.
Clearly, also, it is settled that payments, unless imputed by instruction or by agreement, must be applied to the oldest of the claims and not given any effect in so far as the other claims are concerned.
There is, however, one case which requires analysis if it is to be distinguished from the cases already cited. The conclusion reached in Nesom v. D'Armond, 13 La.Ann. 294, is properly and succinctly stated in the syllabus, which reads as follows:
"Where an obligation was to be paid in several installments, and all the installments were due when the debtor made a payment without directing on which installment the credit was to be given — Held: The payment must be deemed to have been made in part satisfaction of the whole debt and prescription on all the installments was thereby interrupted."
But there the sum due on the installments had originally been one debt, divided into three installments for convenience. The one debt had represented the purchase price of slaves bought at one sale. Here there was not one debt; there were several — each separate and distinct from each of the others — and there was no provision of *123
contract or of law which made all due upon the failure to pay one. There was nothing which may be likened unto the familiar acceleration clause in contracts of lease. The Supreme Court, in Kearney v. Fenerty,
It may be that, even in the absence of an acceleration stipulation, if the action of the parties has been such as to convert the separate, individual claims into one disputed whole, then payment on account would have the effect of interrupting prescription as to all. But the facts here do not show any such action on the part of the parties.
In the case at bar there was not one debt which had been divided into several installments. There were several distinct debts, each for salary for a different month. If, in the Nesom Case, the three notes had been given each for the separate purchase price of slaves bought at three separate and distinct times and at three separate and distinct sales, we entertain no doubt that a different result would have been reached and that the court would have held that payment on account should be imputed, in the absence of a stipulation, to the oldest of the debts. Thus, prescription would not have been interrupted as to the others.
Applying the two payments made to Gardiner to the oldest claim, they would have no effect upon the running of prescription on the later claims. It follows that the prescription of three years has not been interrupted.
The plea of prescription may be filed at any time, even in the appellate court. Code Prac. art. 902.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended to the extent that plaintiff's suit be and it is dismissed at his cost.
Amended; suit dismissed.