This is a suit against the defendant J.N. Meeks, as contractor, and *Page 1021 the Union Indemnity Company, as surety, upon his bond. The prayer of the petition is for judgment in favor of the plaintiff and against the defendants, in solido, for $3,311.46, with 5 per cent. per annum interest thereon from October 1, 1926, until paid, and for the statutory penalty of 10 per cent. thereon for the surety's nonpayment within 30 days after written demand.
This is not a concursus proceeding; there is no dispute about the contract and bond, and the owner of the property is in no way involved. The only question at issue is the imputation of a payment of $2,000, on September 27, 1926, by J.N. Meeks to the plaintiff. The trial judge found that the payment mentioned was improperly imputed and rendered judgment accordingly.
We do not consider it necessary to review the testimony further than to say that J.N. Meeks testified that he instructed the plaintiff to impute the payment of $2,000 made on September 27, 1926, in its entirety, on the job erected under contract with Mrs. Emma B. Gras, in connection with which the Union Indemnity Company was surety upon his bond. Plaintiff admits the payment, but its witnesses testified that, in their prior dealings with Meeks, it had been their custom to apply payments made by him to his debts of longest standing, and that custom was followed in reference to the payment of September 27, 1926.
We concur in the conclusion reached by the trial judge that the burden of proof was upon the plaintiff to sustain its contention that the aforesaid payment was properly imputed, and also in his conclusion that plaintiff has failed to establish that fact by a preponderance of the testimony.
For these reasons, the judgment appealed from is affirmed, at appellant's cost. *Page 1022