Schilkoffsky v. Marmillon ( 1921 )

opinion.

By his

Honor John at. Paul.

On April 23rd 1920 plaintiff sued out Executory Process on a promissory note dated January 14th 1914 and payable January 14th 1915. Defendant enjoined the seizure on the — ground that plaintiff had been placed in charge of the for the purpose of collecting the rents and paying himself; and that he had collected sufficient rents to discharge the note with interest fcc. The judgment below .was for defendant.

I.

In this court defendant filed a plea of prescription of five years, which of course is not well fiundedj since in fact, and according to her own allegations and evidence, plaintiff was put in charge of the property for the purpose of paying hitaolf; and this was a continious acknowledgment of the debt which interrupted prescription.

II.

The evidence shows that plaintiff was in exclusive charge of the property from January 1st 1914 to December 51st 1916, and had joint charge thereof with a Homestead Association from January 1st 1917 to June 30th 1918; that during the time he was in charge, he rendered defendant only a partial, slovenly ana inoorraot statement of her account; partial because it runs only through 19U5; slovenly because it no details as to -the source from which rents were actually A collected, and assigns no reasons for failure to collect rents due, hut not paid: incorrect, because it does not ite&lge the lump sums put a own as charges, in which lurap sums are included the interest on the notes for four successive years, which 8ame Interest he is now suing for.

On the whole- it is not such an account as an agent should render his principal; and therefore, whilst vve are not prepared to say that plaintiff has been paid in full (because we decline to mahe up that account) yet we think 'that defendant's injunction should Taz, perpetuated unless and until plaintiff shall have rendered her a full and correct account of his administration, and shall have established clearly the balance^if any, duo hy her on the note heroin sued upon. This can he done hy affirming the judgment of the trial court and reserving plaintiffs right to sue via ordinaria for 1Ae balance due-Aém-, if any. --- a, i aftac accounting to the defendant. 3ut we charge him with the cists. (,*ct of 1910)

December 12th, 1921.

!£he judgment appealed from Is therefore affirmed; reserving however, to the plaintiff the right to sue via ordinaria for suoh hálanos as may bo due him on the note herein sued upon after he shall have accounted ful|y and fairly to the defendant for the rents which ha has collected, or should have eolleoted, from her property. ' to pay oosts of both courts. '

Hew Orleans la*