#### MADISON LUMBER CO. v. ESTRADE.*

No. 13853.

Court of Appeal of Louisiana. Orleans.

May 2, 1932.

*432Paul W. Maloney, of New Orleans, for appellant.

Deutsch & Kerrigan and Bert A. Flanders, Jr., all of New Orleans, for appellee.

*

Rehearing denied May 18, 1932.

HIGGINS, J.

This is a suit on 'an open account for the sum of $246.22 alleged to be due for .building materials furnished and delivered to defendant, a contractor, between August 22, 1927 and August 26, 1927. Defendant filed a plea of prescription of three years, and in his answer pleaded payment, averring that the account had been paid in full on September 9, 1927.

There was judgment in favor of the plaintiff as prayed for, and defendant has appealed.

We shall first take up the question of prescription. The petition alleges and plaintiff proved that the building materials were sold' and delivered to defendant between August 22, 1927, and August 26, 1927, on an open account. The suit was filed on August 29,1930, and citation served on defendant on September 23, 1930.'

The relevant parts of article 3538, R. C. C., as amended by Act No. 78 of 1888, read as follows:

“Art. 3538. The following actions are prescribed by three years: * * *

“That on the accounts of retailers of provisions, and that of retailers of liquors, who do not sell ardent spirits in less quantities than a quart.

“Thift on all other accounts. * * * ”

Counsel for plaintiff concedes that the above-quoted law establishes a prescriptive period of three years on open accounts, and that ordinarily plaintiff’s action on each particular item claimed would be barred by the lapse of such a period from the time of the purchase of the material, but argues that an unusual circumstance existing here prevents the application of this general principle of law. He points out that the terms on which defendant purchased the materials were shown to be 2 per cent, ten days on sand and gravel and on plastering material 7 per cent. ten days or 5 per cent, by the fifteenth of the following month, the net amount becoming-due on the first of the month following the expiration of the last possible discount period, and he fixes the date, according to the testimony of the credit manager of the plaintiff company, as October 1, 1927.

It is clear that the prescriptive period begins to run from the accrual of the cause of action. Now the purchase price for the materials became due and exigible on the last day on which the defendant could take advantage of the discount period, i. e., September 15, 1927. When that date arrived, surely the whole claim became due and plaintiff’s cause of action came into existence and could have been asserted at that time in the absence of a special agreement to the contrary.

Mr. Dubos, the credit manager of the plaintiff company, testified that, according to the company’s custom, the bill matured October 1, 1927. Defendant in his testimony denied this, and his counsel contends that the cause of action accrued after the final discount-date or September 15, 1927.

We do not believe that the plaintiff has successfully shown that the account accrued or that its cause of action came into existence-on October 1,1927, but feel that the defendant has proved that the cause of action came into existence on September 15, 1927; consequently, citation not having been served until September 23, 1930, the claim was prescribed because the three years had elapsed on September 15, 1930, and therefore defendant’s plea of prescription should have been sustained.

Counsel for plaintiff relies on the case of Gasquet v. Board of Directors of City Schools, 45 La. Ann. 342, 12 So. 506, 507. That was a suit by an owner of school certificates against the board of directors of city schools for unpaid salaries of teachers and expense of maintaining public schools in the city for the years from 1872 to 1879, inclusive. The defendant pleaded prescription. The court said that, as it was neither averred nor proven that the necessary funds to pay the certificates had been placed in the school board treasury for that purpose, the court could not assume that such a fund existed for the term of the prescriptive period of five or ten years. The court said:

“We think the pleas of prescription are not well founded. Act 36 of 1873 makes it very clear that the claims evidenced by these certificates were not payable absolutely, or at any particular time. ' They are payable only out of the revenues of the years for which they are issued, and only when said revenues are collected, and in the manner therein provided ; and the act further declared that ‘no writ of fi. 5⁄8. or mandamus shall lie for the seizure of any school money, or to direct or *433enforce its paying out, otherwise than in the manner and sequence required in this act.’

“This law formed a part of the contracts out of which these claims arose, and deprived the claimants of any legal remedy to enforce payment except out of particular revenues, when actually collected and covered into the treasury.”

The court further found that there was nothing in the record to suggest that plaintiff had slept on his rights. We fail to find where any legal principle announced by that decision is applicable here because the plaintiff could have entered suit against the defendant at any time within the three-year period and certainly slept on its right in not doing so.

Having reached the conclusion that the plea of prescription was good, and that plaintiff’s suit should be dismissed, it is unnecessary to discuss the defense of payment.

For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of the defendant, Herman J. Estrade, dismissing plaintiff’s suit at its cost.

Reversed.