Musey v. Prater

PROVOSTY, J. In this case the owner of a newly constructed building has deposited in court $746.37, which, he alleges, is the balance due for the construction of the building, and has cited the contractor and the surety on his bond and the furnishers of labor and materials to show cause why said deposit should not be adjudged to be the total balance due, and be paid over to whoever is entitled to it, and he and his building be released from all claims. Between him and the contractor and the surety on the bond there is no dispute. As against the furnishers of labor and materials his contention is that they, not having served on him a sworn statement of their claims within 45 days, as required by the third paragraph of section 1 of Act 262, p. 536, of 1916, have no 'dghts against either him or his building. Interpreting an exactly similar statute in [73] La. Glass & Mirror Works v. Irwin, 126 La. 555, 52 South. 765, this court said: “There is no privity of contract between the owner and persons who furnish materials to the contractor, and the latter in order to acquire a right of action against the owner must comply * * * with the requirements of the statute.” One of the requirements of the statute being the serving of a sworn statement within the delay named, and the furnisher of labor or materials having to comply strictly with the requirements of the statute in order to acquire a right of action, it follows that for showing that he has acquired a right of action, the furnisher of labor or materials- must prove that such service was duly made. No evidence was offered on that point in this case. But the defendants contend that the following allegation of plaintiff’s petition being article 5 of the petition, supplies this proof: “Petitioner further shows that numerous parties have notified him that they have claims against the said J. Hamp Prater for work done and for materials furnished in constructing said building and improvements, aggregating in amount a sum far in excess of the amount remaining in petitioner’s hands, and rightfully and lawfully due and payable by petitioner under the hereinabove mentioned contract and bond.” Mention is here made only of a notice. Nothing is said of such notice having been in the form of a sworn statement; and still less that the same, even if in the required form of a sworn statement, was served timely. Moreover, no mention is made of who gave the said notice, or how many claimants did so; so that the allegation does not necessarily refer to the defendants. Besides, a pleading should not be construed so as to be destructive of the very demand its purpose is to make good. Even, however, if the said paragraph 5 of plaintiff’s petition were construed as furnishing evidence of due service having been made of a sworn statement, its effect as evidence would have to be considered as counteracted and nullified by the following averment taken from one of the answers, and which is reproduced in about the same words in all the other answers, except in that of Lake Charles Planing Mill, to wit: “In answer to articles 4 and 5 of plaintiff’s petition, defendant alleges that it does not possess sufficient information to either admit or deny, or to justify a belief as to, the correctness of the allegations thereof, but for the purpose of placing said allegations at issue, and putting plaintiff upon strict proof thereof, it denies all of said allegations.” Here the defendants disclaim having any knowledge of the notice spoken of by plaintiff having been served; and they ask that plaintiff be required to make strict proof of same. Act 229, p. 494, of the same year, 1916, does not, like said Act 262, require the serving of a sworn statement upon the owner; and the defendants invoke its protection. Reading the two acts together, it is very evident that Act 262 is intended to apply to building contracts of $5,000 and up, and Act 229 to all other building contracts. To hold otherwise would be to convict the Legislature of having adopted at the same session and on the same day two antagonistic acts governing building contracts of $500 and up; one dispensing furnishers of labor and materials from serving a sworn statement upon the owner, and the other requiring such a service to be made. If there were nothing in the acts to preserve them from this antagonism, Act 262, as being special to building contracts of $500 and up, would override Act 229 in their bearing upon contracts involving that amount; the latter act being general in its terms. But in order to prevent this very antagonism between the two acts there was added to the last section of Act 229 this provision: “This act shall not be construed to repeal or affect the operation of Act 167 of 1912, as [75] amended by an act adopted at this session of the General Assembly” ■ — meaning Act 262. The operation of the latter act is to impose upon furnishers of labor and materials the requirement to serve a sworn statement upon the owner within 45 days. This requirement, which is the law controlling the present ease, cannot be allowed to be affected by said Act 229. The bond in this ease was not in favor oí the laborers and materialmen; hence they had no recourse upon it. In view of this failure of the owner of the building to exact of the contractor a bond of the kind required by said Act 262, the learned counsel of the furnishers of labor and materials argue that he is not entitled to the protection of said Act 262. The answer is very simple. The furnishers of labor and materials have no claim whatever upon or against the owner or his property until they have complied with the requirements of said Act 262 by whose operation solely their right of action against him or his property comes into existence; and until they have thus acquired a claim against him or his property he stands in no need of the protection of said act. His failure to exact a bond does not make him liable irrespective of whether a sworn statement is served within the legal delays, but makes him liable provided such a statement is served. After the 45 days have expired without a sworn statement having been served upon him, he is free to make payment to the contractor. It is the service of the sworn statement within the legal delays of 45 days which arrests the funds in his hands and makes him liable. The judgment of the Court of Appeal, which restricted to the amount deposited in court the claims of the furnishers of labor and materials, is therefore affirmed, with costs.