Baldwin v. Wood

Carleton, J., delivered the opinion of the court. The defendant, A. T. Wood, contracted on the 27th January, 1834, to furnish materials and build a house for Jacob L. Florance, at the corner of Lafayette square and Camp-street, for the price of sixteen thousand four hundred and ten dollars, of which four thousand dollars were then paid, and the balance stipulated to be paid at various stages of the work, as it progressed to completion. The plaintiff sold to Wood a quantity of bricks, to be used in the construction of the house, and gave his promissory note for the price, which being protested for non-payment, forms the basis of the action. On the 28th of June, of the same year, the plaintiff caused to be seized in the hands of [458] Florance, tbe money then remaining' due the undertaker 0n the above contract, agreeably to tbe provisions of the Louisiana Code, articles 2741 and 2744. Payments made v the proprietor to the undertaker in antioi-considered, aín nishers ofmate-rials, as if not made, and he can exercise his privilege against the proprietor, by claiming it before the time of payment stipulated arrives. But the material man must show that the proprietor has made anticipated payments or paid before the debt is due, before he can exercise or be entitled to his privilege. At the trial of tbe cause, the court gave judgment against the defendant, Wood, for the sum claimed in the petition, and decreed in favor of Florance. It appears from the statement furnished by Florance, and admitted to be correct, that in addition to the money paid at the date of the contract, he had paid the further sum of five thousand and five dollars and eighty cents, before the seizure in his hands, and that on the 12th August, he paid one thousand and fifty dollars to the Louisiana bank, the amount of a note given on the 9tli of April, by Wood to J. R. Jones, and endorsed by him, Florance, for materials incorporated in the house, making the entire sum of ten thousand and fifty dollars and eighty cents, which Florance had actually paid, and become responsible to pay by his endorsement, prior to the 28th of June, Furnishers of materials have, no doubt, a right to seize moneys that are due the undertaker at the time of the service Pr°cess, and to this the plaintiff very properly limited his demand in the prayer of his petition. Louisiana Code, articles 2741, 2744. But bis counsel contends, that payments made by the proprietor in anticipation to the undertaker, are considered in regard to furnishers as not made, and do not prevent them from exercising the right of seizure, and cites Louisiana Code, article 2745. By anticipated payments, we think, are plainly meant those that are made before the debt is due. If the plaintiff had shown that any such had been made, they would have been nevertheless, liable to seizure. But this, it appears to us, he has wholly failed to do. Only one witness was examined at the trial of the cause, whose testimony does not enable us to say that Florance made any payments by anticipation. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.