Neith Lodge, No. 21, I. O. O. F. v. Vordenbaumen

Statement of the Case. NICHOLLS, C. J. The plaintiff, in its petition in this suit to the district court for the parish of Caddo, alleged that the defendant was indebted to it in the full sum of $505.85, for this: That on the 8th of June, 1897, it entered into a contract with one J. M. Bartlett to build a building in the city of Shreveport for the price of $7,450. That in order to guaranty the full compliance with said contract by Bartlett, and in order to fully protect it against any claim for labor, materials, etc., used or employed in the erection and completion of said building, Bartlett executed a bond in solido with said Vordenbaumen in the sum of said contract price, which has [215] duly been recorded. That said building was completed on January 20, 1900, in an imperfect and defective manner, and on April 20, 1900, Vordenbaumen & Eastham, a commercial firm of which Vordenbaumen was a member, instituted suit against it for the recovery of an alleged lien and claim against said building, and thereafter, on appeal to the Supreme Court, judgment was rendered against it for the sum of $125.05, with interest and costs. That on August 10, 1901, it paid said judgment, interest, and costs; said sum aggregating $505.85. That Bartlett is wholly insolvent, and Benjamin, one of the solidary sureties on said bond is dead, leaving no property. That its right to sue said Vordenbaumen was specially reserved in the judgment in the Supreme Court, and that, by virtue of the terms and conditions of said bond, Vofdenbaumen is indebted to it in said sum claimed. It prayed for judgment against him accordingly. Defendant answered, pleading first a general denial. He specially resisted the claim for interest and costs, averring that plaintiff could have absolved itself therefrom by paying the debt. 1-Ie resisted the -remaining part of the claim, averring that same was materials furnished the contractor for plaintiff’s building, and an itemized account was served on the plaintiff on December 20, 1899, when plaintiff had plenty of funds to pay the same, but after said time it paid out same to other parties, and refused to pay said debt for material, and it was through its own laches said debt was not paid in due season; and, even when plaintiff was sued, it refused to pay the same, and contested the same through to the Supreme Court, where final judgment was rendered against it, and that more than 90 days had elapsed from the completion of the building before the present suit was brought, and defendant’s bond had long since become null and void, under the statute. He prayed for the rejection of the demand, with costs. He pleaded prescription of 90 days under the statute. IVe make the following extract from the opinion of the Court of Appeal in. this case: “J\ M. Bartlett, a contractor, entered into a contract with the appellee to erect a building on its lot in this city [Shreveport] for $7,450. The appellant, E. H. Vordenbaumen, on the 8th of June, 1899, signed a bond, together with Sam Benjamin, as surety to the contractor. “The bond is conditioned as follows: ‘Whereas, J. M. Bartlett has contracted with the above named Building Committee to execute, construct and complete a Lodge Building for the sum of $7,459.54, by a contract dated June 8th, 1899, hereto attached, and the condition of this obligation is that if the said J. M. Bartlett shall duly perform said contract, and shall comply with Act No. ISO passed by the Louisiana Legislature in 1894, and amended by Act No. 123, of 1896, by paying all workmen, laborers and mechanics, and all those who furnish supplies and materials actually used in the building, then this obligation is to be void, but if otherwise the same shall be and remain in full force and virtue.’ The firm of Vordenbaumen & Eastham, of which the appellant was a member, sold the contractor the material for the building, and did some of the work. On the failure of the contractor to pay the bill for material and labor performed, Vordenbaumen & Eastham brought suit against the contractor and lodge (plaintiff herein) for the supplies and materials used in the building, and also for the contract price of the labor performed. In the Supreme Court a judgment was rendered in their favor against the lodge, including interest and costs, amounting to $502.25. See 105 La. 752, 30 South. 219. “The plaintiff paid the judgment, and thereupon brought the present suit for indemnification against the appellant, the surety on the bond. “The defendant tendered an exception of no cause of action, and the limitation of ninety days, as embodied in th.e act of 1894. This exception was referred to the merits by consent of both litigants. The defendant answered, in which he pleaded nonliability for costs, and that the bond was null and void, being over ninety days since the completion of the building, and that the plaintiff was guilty of laches, whereby the defendant was discharged. “The case was tried on the record of Vordenbaumen & Eastham v. Neith Lodge, and resulted in a judgment in favor of the plain [217] tiff for 5-102.14, and from this judgment the defendant appeals.” Opinion. The Court of Appeal, on this declared state ■of facts, affirmed the judgment of the district court, with costs. It will be seen from the opinion of this court in Vordenbaumen & Eastham v. J. M. Bartlett et al., in its review of that judgment (105 La. 752, 30 South. 219), that in that suit the present plaintiff set up the fact that it had paid the amount stipulated in the contract, and that it was not indebted to the contractor at the date the suit Avas instituted, and that it particularly invoiced the fact that Vordenbaumen was surety on the bond of Bartlett, the contractor. In passing upon the issues raised in that case, this court said: “The entire building-on Avhich plaintiff [Vordenbaumen & East-ham] worked, and in the construction - of which its materials were used, was completed on the 20th day of January, 1900. “On the 20th of December preceding, plaintiff served an itemized account [for work done and materials furnished] on the defendant, bat the owner, the Neith Lodge, did not serve the attested account on the contractor, Bartlett, and did not seek to bring about an adjustment of the claims with this contractor. “The district judge found as a fact that at the date of the service of the attested account the lodge owed an amount to the contractor, which it chose to pay after notice of the attested account. * * *” The Court of Appeal found, as did the district judge, that at the date of the service of the attested account the lodge was indebted to the contractor, Bartlett, Avhich was “afterwards paid by the owner to the holders of other claims.” The contractor had rendered to the owner all service provided for by the contract. Before the payment had been made, we have noted that it (Neith Lodge) had been notified b3r service upon it of an attested account made out as required by Article 2772, Civ. Code. The Court of Appeal was strongly inclined to reverse the judgment of the district court and render judgment in favor of Vordenbaumen & Eastham, but did not do so, as it felt itself forced to follow the views of this court as announced in Schwartz v. Cronan, 30 La. Ann. 995. This court, to a certain extent, overruled the latter opinion, and doctrines announced therein, and, as we have said, reversed the judgment of both the district court and the Court of Appeal, and gave judgment in favor of Vordenbaumen & Eastham. In our opinion we alluded to the fact that the plaintiffs in that case were not proceeding under Act No. 180 of 1894, p. 223, but under the articles of the CiA-il Code and the statutes enacted prior to 1894. We stated that we did not consider the laws regarding owners, builders, workmen, and material which were in force prior to the adoption of the statute (Act No. 180, p. 223, of 1894) had been repealed, but that the latter law only enlarged the security. That, in our vieAV, the old law, in so far as it did not conflict with the statute in question, was still in force, and under it creditors might have funds retained in the hands of the owner a sufficient length of time to enable all parties to be heard regarding their rights.’ The claim advanced in the present suit by Neith Lodge against Vordenbaumen as surety of Bartlett is based exclusively upon the payment which it has made of the judgment in the matter of Vordenbaumen & Eastham, reported in 105 La. 752, 30 South. 219. That judgment established the fact of the indebtedness of Bartlett to Vordenbaumen & Eastham to the amount decreed by the judgment; the fact that those parties had proceeded legally and properly against the lodge, by seiwing upon it an attested account of their claims against Bartlett; a'nd that the situation was such at the time of said service as to entitle them to a judgment against it. As the lodge had obtained the bond required to be given by Act No. 180, p. 223, of 1894, and had recorded it, Vordenbaumen & Eastham could not have successfully proceeded against the owner of the property under that statute. They were forced to have recourse to service of an “attested account” upon the owner, and take action against it as being a debtor of Bartlett. The service of that account upon the owner deprived it, to the extent of that claim, of its liberty “of action in subsequently paying Bartlett. It operated substantially as a seizure in its hands of that much of the money owing by it to Bartlett, and, as an injunction to it against making an after payment to the [219] latter, it was in the nature of a garnishment of the fund due to Bartlett. Neith Lodge views the payment which it made of the judgment as a payment made out of its own money to creditors of Bartlett, entitling it to claim reimbursement from Vordenbaumen as surety upon Bartlett’s bond. This view of the situation overlooks the fact that in legal contemplation the money which plaintiff expended in making the payment of the judgment must be held to have been Bartlett’s money, and not its own. By making that payment it paid, to that extent, its own debt to Bartlett, and became at once entitled to be credited for that sum. Bartlett could no longer claim that amount from it, and, if the lodge thought proper to pay him, it was the payment of a thing not due to him, which might entitle it to recover the amount from Bartlett, who had unduly received it, but not from Vordenbaumen, as Bartlett’s surety on the bond. The latter was not Bartlett’s surety, guarantying the return by him of moneys which he had improperly received. The legal situation was that Bartlett himself, through Neith Lodge, acting forcedly on his behalf, paid his creditors, Vordenbaumen & Eastham, out of his own moneys in the hands of the lodge. If this was the situation, the condition of the bond on which Vordenbaumen was surety was not broken, so far as the payment of this claim was concerned. The plaintiff could not make a payment subsequent to the payment of that money to Bartlett to the prejudice of the seizure, or its equivalent, which had taken place, and so as to work damage to Bartlett’s surety. The surety had, in fact, through the action which his firm had taken against Bartlett and the lodge, moved out for the protection both of himself and the present plaintiff, and had placed the latter in a position of security for the payment of this particular claim to Bartlett’s creditor out of his own money, which it and Bartlett could by no voluntary arrangement between themselves ignore. We are of the opinion that the judgment of the district court in favor of the plaintiff was erroneous, as was also that of the Court of Appeal affirming the same, and that both of said judgments should be reversed and set aside, and that plaintiff’s demand should be rejected. The view which we have taken of the merits of the case renders unnecessary any decision upon the question of prescription which was raised in the case. Eor the reasons assigned herein, it is hereby ordered, adjudged, and decreed that the-judgment of the Court of Appeal herein brought up for review, affirming on appeal to it the judgment of the district court rendered in the present action, be, and the same is hereby, annulled, avoided, and reversed and set aside; and it is further adjudged and decreed that the judgment of the district court so appealed to the Court of Appeal, and by it affirmed, and which latter judgment has herein been annulled, be itself annulled, avoided, and reversed; and, proceeding to render such judgment in the cause as should have been rendered by the district court, it is hereby ordered, adjudged, and decreed that plaintiff’s demand be rejected and its suit dismissed at its costs in each of the three courts.