Plaintiffs, George Mandella, Warren Gardner, Gertrude Gardner, and Alfred T. Post, brought this action against defendants, Vincent Russo and Charles Cabibi, seeking a declaration of the rights and obligations of the parties under the provisions of a promissory note payable in installments and secured by a vendor's lien and mortgage on a tract of land in Jefferson Parish. On October 13, 1970 pursuant to a credit sale of the land to Mandella by Russo and Cabibi, Mandella executed a promissory note paraphed for identification with the act of credit sale (the note in the record states "Chattel Mortgage"), which provided:
The ten year term of this note was entirely consistent with Mandella's second offer to purchase the property accepted by Russo and Cabibi which stated, "* * * Seven Thousand ($7,000.00) cash; Seventy-eight Thousand & 00/100 Dollars ($78,000.00) payable $905.66 per month for 120 months, including interest @ 7% per annum, interest payable on unpaid balance, vendor to retain a vendor's lien and mortgage." Subsequent to being notified by Russo that he had been delinquent on several occasions on November 1, 1972 Mandella obtained a loan in the amount of $110,000.00 from Mrs. Gardner and Post for which he executed a promissory note secured by a mortgage on the property encumbered by the vendor's lien and mortgage of Russo and Cabibi.
Mandella attempted to prepay all of the principal due on the note and the interest accrued to date, at the designated place of payment, which tender of $67,231.48 was refused by Russo and Cabibi because it was not in accordance with the exact terms of the mortgage note providing $905.66 per month. On November 6, 1972, Mandella, the Gardners and Post filed suit for a declaratory judgment to declare the Russo-Cabibi note paid with $67,231.48 plaintiffs deposited in the registry of Court, and to have the mortgage and vendor's lien in favor of Russo and Cabibi cancelled and erased.
Defendants argue that Mandella could not prepay the note. It is their contention that the term had been stipulated in favor of the creditor and debtor relying on LSA-C.C. Art. 2053 which states:
After answer was filed, plaintiffs moved for a partial summary judgment relying only on their petition to which were attached a copy of the Russo-Cabibi to Mandella act and act of credit sale and mortgage granted by Mandella in favor of Mrs. Gardner and Post.
In their affidavits in opposition the defendants stated that at the time of the execution of the credit sale they had no intention of allowing Mandella to prepay the note; their purpose in selling the property was to acquire a certain monthly income which could be attributed to an obligation
In the alternative, defendants moved for summary judgment alleging that if the contract was conclusive of the parties' rights on its face, then they were entitled to summary judgment as a matter of law since no prepayment provisions were contained in the note.
Plaintiffs filed no opposing affidavits to defendants' alternative motion for summary judgment relying entirely on their motion for summary judgment. Plaintiffs' failure to file affidavits indicates that plaintiff believed that the intentions of the parties did not constitute a genuine issue of material fact. The defendants also filed an exception of no cause and no right of action as to the Gardners and Post which exception was referred to the merits by the trial judge.
The defendants appeal from the lower court's judgment granting plaintiff's motion for partial summary judgment that Mandella had a right to prepay the note together with all interest actually earned thereon at any time.
We reverse and remand. As the record now stands, it does not appear that summary judgment was proper.
The procedure for summary judgment is provided for in the following provisions of the Code of Civil Procedure. Article 966 states:
Article 967 states:
The trial judge found that no genuine issue as to material fact did exist. We determine that by the granting of the plaintiffs' motion for summary judgment the lower court necessarily ascertained that the note and the act of credit sale were clear and conclusive of the parties' rights on its face. The trial judge resolved that defendants' affidavits in opposition to the motion for summary judgment did not create a genuine issue of material fact. This conclusion is not supported by the record.
If the contract was conclusive of the rights of the parties, then the granting of the plaintiffs' motion for summary judgment, as opposed to the defendants, was in error because the contract did not provide for prepayment but stated specifically "120 installments of $905.66 each month." In order to grant the plaintiffs' motion, the trial judge must have concluded that as a matter of law that when a contract is silent on the issue of prepayment a debtor is entitled to prepay. We can find no authority to support this conclusion, and as a matter of law it appears that the opposite conclusion may be correct. See 4 Aubry Et. Rau, Droit Civil Francais § 303 (6th Ed. 1942) in A. N. Yiannopoulos, 1 Civil Law Translations 90 (1965) where it is stated:
only in the interest of the latter. * * *"
We interpret this statement to mean, that although the length of time granted to a debtor for payment is in his favor, the interest itself is for the benefit of the creditor. Mandella tendered the principal balance due plus accrued interest to the date of tender, but not the full amount of interest that would have accrued for the ten year term in favor of the creditor.
The affidavits of defendants state facts which tend to prove that, from the circumstances in which the act of credit sale was formed, the term was also for the benefit of the creditor.
The mover for summary judgment has a heavy burden, and all reasonable doubt as the existence of a genuine issue of material fact must be resolved against him. Latter & Blum, Inc., v. Von Ruekfrang, 249 So.2d 229 (La.App. 4th Cir., 1971). In this case, on the basis of the record, at the very least, there is a reasonable doubt as to the nonexistence of a genuine issue of material fact and the plaintiffs' motion for summary judgment should have been denied.
The referral of defendants' exception of no right and no cause of action to the merits cannot be considered on this appeal from the granting of a motion for partial summary judgment. Further, a judgment overruling an exception of no right or cause of action is interlocutory and unappealable. Rapides Cent. Ry. Co.
For the foregoing reasons the case is reversed and remanded for proceedings not inconsistent with the views expressed. Plaintiff-appellee is to pay the costs of this appeal.
Reversed and remanded.