Succession of Loeber

By WILLIAM A. BELL, Judge.

This appeal is from a Judgment dismissing an opposition filed by the 1. Grünewald Company, Limited, to the administrator's final aooount. Claiming to he a creditor for an alleged balance due on the purchase price of a piano, sold and delivered to the decedent on July 18, 1910, The Grünewald Company filed an opposition to the final account, on October 14, 1928.

The opponent claimed to have sold a piano to the decedent •on July 18, 1910, for the price ana sum of $460.00, of which there «as a balance due on the principal of $64.00, with interest at 6$ per annum from April 18, 1922. and of $129.85, alleged to be accrued •interest up to that date, plus 10$ additions], thereon as attorney's fees. The administrator filed a plea of prescription of three, five and ten years. On the trial the opponent offered in evidence the contract, of purchase where in, among other things, the vendor retained title in the .instrument sold until the full purchase price had been paid. The contract further provided that ¿o preso» ip ti on should run against the purchase price as long as any balance remained due and unpaid. The opponent also offered in evidence #»opy of the account showing debits and credits- More than twelve years elapsed between the date of the purchase and the death of the purchaser, which was April 23. 1922. The lower oourt sustained the plea of prescription of three years and dismissed.the opposition, from which Judgment the onnonent has prosecuted this appeal.

In support of the opposition herein filed, appellant relies ¡entirely upon the ruling of this court in Werlein v. Forstall, 1 Orl. Appl., 249. In that case this court reversed Judgment of the Court a quo, which maintained an exception of three years prescription .to suit on contract similar to that now under consideration. .The opinion of this court in the cited case was predicated upon the Views therein -expressed^that a clause in a contract to purchase a plane atíd other'articles, which provided that default in one peyment would mature all others yet to become due, was in effect a waiver hy anticipation of prescription. We think that such conclusion was erroneous and quite contrary to the expressed prohibition of Article 3460 of the Revised Civil- Code against the renunciation of prescription not yet acquired. In the cited case, the court held that the renunciation of prescription was anticipated and implied. In the case before us there is a special stipulation in the last clause of the contract by which this prohibited waiver or renunciation is admitted. The decision in Werlein v. Forstall should have been in conformity with the ruling made in Segond v. Landry, 1 Rob., 335, and to which we now adhere. Where a prior expression of this court is clearly 'erroneous, to will not hesitate to depart therefrom. Such a ruling has been not infrequently made by the Supreme Court of this State, as was recently done by that court in the case of State v. Orvill Smith, No. 25753 (decided February 26, 1923) .

The ointract offered in support of the opposition herein filed is one of conditional sale, in vfcioh it is attempted to reserve to the vendor title to the thing sold until the full amount of -the purchase price is paid. The effect sought is to make the contract oije of lease, rather than one of sale , and is such as the laws of Louisiana do not recognize except under special statutory provisions covering other and different subjects than are now before us. The decision in Barber Asphalt Co. v. St. Louis Cypress Co., 121 La., 152, covers fully all that can be said on this point of the case and impels us to the conclusion that the contract before us is bitt one of ordinary sale for merchandise "on account," prescripti-ble by three years. The exclusion,by our learned brother of the trial court,of the evidence properly objected,-to,was entirely Justified and nothing can be added to his written reasons for Judgment, .maintaining the pleas^ of prescription herein filed. Article 2278, R.C.C; Succession of Driscoll, 125 La., 291.

II IS, THEEEEOEE, ORDERED, ADJOD&ED AHD DECREED that the .judgment herein appealed, from he and. the sane is hereby affirmed, at appellant's costs in both courts.

JUDSMEHI AFFIRMED,

APRH 30, 1923.