Opinion
No. 96-CA-0105.
May 29, 1996. Rehearing Denied August 29, 1996.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 95-13744, STATE OF LOUISIANA, HONORABLE RICHARD J. GANUCHEAU, J.
Richard J. Tomeny, Jr., Metairie, for Hattie Allen Chambers and Jimmie Chambers.
Alvin Charles Miester, III, Eric Oliver Person, New Orleans, for Pig Feet, Inc.
Before BYRNES, ARMSTRONG and WALTZER, JJ.
Plaintiffs-appellants Hattie and Jimmie Chambers (hereinafter "the Chambers") appeal the dismissal of their suit on a promissory note and the grant of the exception of no cause of action filed by defendant-appellee, Pig Feet, Inc. (hereinafter "Pig Feet"). No written or oral reasons for judgment were provided.
I. STATEMENT OF FACTS
On May 10, 1994 Pig Feet and the Chambers entered into a promissory note. A copy of the note was attached to the Chambers' petition as Exhibit A; it is reproduced below and contained herein as if copied in toto:
As shown above, the note contains two installment payments.
The first payment provides for $50,000.00 payable in 60 monthly installments of $966.65 principal and interest, beginning June 10, 1994 with a final payment on May 10, 1999.
The second installment payment provides for $50,000.00 payable in 60 monthly installments of $854.69 principal and interest, beginning June 10, 1999 with a final payment on May 10, 2004.
From June 10, 1994 through March 10, 1995, Pig Feet made monthly payments of $966.65. On March 24, 1995, Pig Feet made a lump sum payment of $50,000.00.
The note is silent as to pre-payment, containing neither a pre-payment penalty clause or other language.
The Chambers credited the $50,000.00 payment to principal, accelerated the note and filed the instant petition which states:
7.
Pig Feet, Inc. made a payment to petitioners in the sum of Fifty Thousand Dollars ($50,000.00) on March 24, 1995.
8.
Certain payments were made on account of said note but there remains past due and owing the principal sum of Forty-Two Thousand, Six Hundred and Seventy Dollars and 22/100 ($42,670.22).
9.
Pig Feet, Inc. has failed to make monthly payments to Hattie Allen Chambers wife of/and Jimmie L. Chambers for the months of April, May, June. July, and August of 1995.
10.
Pursuant to the provisions of the promissory note, Plaintiffs have accelerated the note and the entire unpaid balance of the note is now due and payable. The principal balance due on the note Forty-Two Thousand, Six Hundred and Seventy Dollars and 22/100 ($42,670.22) together with legal interest from April 10, 1995, until paid, and twenty percent (20%) attorney's fees as provided in said note.
11.
Petitioner has made amicable demand without avail.
In response Pig Feet filed an exception of no cause of action. In the memo in support thereof, Pig Feet stated:
Review of the facts presented in the petition . . . indicates that the amount due to petitioners in accordance with the May 10, 1994 note is current. All monies owed pursuant to the first payment provision, i.e. $50,000.00, have been paid pursuant to the March 24, 1995 payment; which payment petitioners readily acknowledge receipt of in their original petition. Accordingly, no sum is due to petitioners until the second payment provision applies, namely June 10, 1999.
The trial court granted the exception of no cause of action and the Chambers appeal.
II. Specifications of Error Discussion.
On appeal plaintiffs argue that "The Court erred in granting the Exception of No Cause of Action in this cause because on the face of the petition, the plaintiff, Chambers, could prove a set of facts in support of the claim that the Defendant is in default of the terms of the promissory note." We disagree with plaintiffs argument that there is a set of facts which the Chambers could prove which would support their action. The facts are stated in the petition. We find, as a matter of law, that plaintiffs cannot prevail upon the petition for the reasons discussed below.
The note is silent as to pre-payment. LSA-R.S. 9:3509.2 provides:
In the absence of . . . contractual provisions by the parties to the contrary, including provisions relative to the terms and conditions of prepayment, the debtor . . . may prepay in full . . . the unpaid balance of all sums due and owing at that point in time.
The total sum due and owing as of March 24, 1995 was $50,000.00. The second installment of $50,000.00 is not due until June 10, 1999.
Civil Code Article 1868 provides:
When the parties have made no imputation, payment must be imputed to the debt that is already due.
Lastly in Wartelle v. LeBlanc, 10 La. 556, 557 (La. 1837), the Supreme Court stated:
The evidence does not satisfy us, that at the time the remittance was made, Girodel was indebted on any other account than the original purchase made for him by the defendant . . . If only one debt was due at the time, the payment can be imputed to no other.
Thus the trial court, accepting the statements in plaintiffs' petition as true, correctly granted defendant's exception of no cause of action.
In support of their argument plaintiffs cite the cases of Miller v. Potier, 94-1000 (La.App. 3 Cir. 2/1/95) 649 So.2d 1130 and Durr v. Dorsey, 153 So.2d 484 (La.App. 4 Cir. 1963) writ refused 244 La. 1016, 156 So.2d 225 (La. 1963). Neither of these cases apply, because the notes sued upon therein did not contain two installment payment provisions specifying the date on which the second term becomes due.
For the reasons discussed, the judgment of the district court granting the exception of no cause of action is affirmed.
AFFIRMED.