Moore v. Hamiter

*915 MILUS, Judge. The receiver of the Meriwether Supply Company, Inc., brings this suit against the receiver of the Shreveport Paving Company, Inc., and Emmett Coehrap, in solido, for $1,-720.48, the unpaid balance on a note for $5,-000, dated July 10, 1929, made by the paving company and indorsed by Cochran. In the alternative plaintiff asks judgment in the same amount on the open account which it is alleged the note was given to secure. Defendants answer that plaintiff has received out of concursus proceedings involving transactions between the parties more than the amount of the note and that these sums should have been applied to its payment. On the trial of the case, in order to arrive at the true situation, the lower court properly allowed the parties considerable latitude under the pleadings. As a result it is conclusively proven that the note was given to secure only the past due indebtedness existing at its date. Also that a past due indebtedness was considered an account showing unpaid items more than thirty days old; that the existence of such items in an account made it all past due. Applying this test to the account sued on, which is admittedly correct, we find the following sums past due July 10, 1929: Dalzell street account, to the amount of $411.93, less a credit of $11, or $400.93; Texas avenue and Jordan street, $365.88; and Broadmoor boulevard, $346.15; in all, $1,112.96. In the lower court the amount past due was found to be $1,266.90, because the whole of the Dal-zell street account was erroneously held to be past due, instead of only those items dated prior to the date of the note. Judgment was rendered in solido for this amount against both defendants, with 8 per cent, per annum interest from July 10, 1929, and 10 per cent, attorney’s fees. For the difference, consisting of items not past due when the note was given, judgment was correctly rendered on open account against the receiver of the paving company alone, but erroneously allowed 8 per cent, interest, instead of legal interest, and wrongly assessed 10 per cent, attorney’s fees. As defendant Emmett Cochran alone has appealed, we cannot correct this error. The position of defendants, that the proceeds of the concursus suits should be credited on the note, is not tenable. Brinson v. Guyon (La. App.) 150 So. 866. The sums realized on concursus were in payment of particular accounts and to extinguish resulting liens. The judgment appealed from is therefore amended by reducing the amount allowed against Emmett Cochran, who is liable only as an indorser on the note, from $1,266.90 to $1,112.96, and, as amended, is affirmed; plaintiff to pay the cost of appeal.