Monroe Hardware Co. v. Delatte

REYNOLDS, J. In this case plaintiff sues to recover from A. Delatte, contractor for the building of a lodge building, and from Ouachita Valley Camp No. 10, Woodmen of the World, owner of said lodge building, the sum of $186.71 for material furnished by it to A. Delatte and used in the construction of said building. A. Delatte made no defense and judgment by default was rendered against him. Ouachita Valley Camp No. 10, Woodmen of the World, filed a motion to require the plaintiff to elect, which motion was overruled. Defendant, Ouachita Valley Camp No. 10, Woodmen of the World, and warrantor, Union Indemnity Company, denied liability on the ground that plaintiff had no privilege for the reason that it did not cause to be recorded in the mortgage records an itemized statement of its claim, as required by section 2 of Act 229 of 1916; and also denied liability on the ground that plaintiff had failed to show that the materials for which a privilege is claimed were used in the construction of the building. The warrantor further denied liability on the ground that the petition of Ouachita Valley Camp No. 10, Woodmen of the World, failed to express a cause of action against the warrantor under the terms of the bond, and alleges that Ouachita Valley Camp No. 10, Woodmen of the World, has funds in its possession due to the contractor of an amount greater than that claimed in this suit. On these issues, the case went to trial. There was judgment in favor of the plaintiff for $176,95, with 5% per annum interest thereon from judicial demand against Ouachita Valley Camp No. 10, Woodmen of the World, with recognition of its lien and privilege, and judgment in favor of Ouachita Valley Camp No. 10, Woodmen of the World, against Union Indemnity Company for a like amount, in warranty. Defendant, Ouachita Valley Camp No. 10, Woodmen of the World, and warrantor, Union Indemnity Company, have appealed. [69] OPINION. In this case the Ouachita Valley Camp No. 10, Woodmen of the World, contracted with A. Delatte for the erection of a lodge building but it failed to record in the office of the recorder of mortgages the contract or agreement or to furnish bond within the time and condition as the law required in order to relieve the owner from liability for unpaid labor and material used in the construction of the building. Therefore, this case comes under Act 229 of 1916. Plaintiff’s demand is for $186.71 for material sold by it to A. Delatte for use in erecting a building for Ouachita Valley Camp No. 10, Woodmen of the World. It offers in support of its claim the following testimony: Prank Mayes testified, pages 3, 4, 15, 16. “Q. Mr. Mayes, I hand you an itemized account of the Monroe Hardware Company against A. Delatte, the account sued on in this case; examine that account and state whether or not it is true and correct, and whether or not you made the sales of those articles to Mr. Delatte. “A. I made quite a number of these sales, and the account to the best of my knowledge is correct. “Q. Do you know to whom the goods were actually delivered? “A. Yes, sir. “Q. To whom? “A. Mr. Welch. “Q. When you knew him, what was he doing in Monroe? “A. Working at the W. O'. W. building. “Q. Woodmen of the World building on Jackson street? “A. Yes, sir. “Q. What did you actually see him doing? “A. I saw him superintending, the work on the building. . . “Q. You have already testified that you sold some of these articles. I hand you 17 slips designated ‘Plaintiffs 2’, and. ask you to state what those slips are, what they represent? “A. Orders to the Monroe Hardware Company for certain materials which were ordered by A. Delatte. “Q. By whom are the orders signed? “A. Mr. Welch’s name is signed to them. “Q. Do you know whether or not that is Mr. Welch’s signature? “A. I don’t know. I didn’t’ see him sign it. All signed just alike. “Q. How did these orders come into the possession of the Monroe Hardware Company? “A. By laborers from the job. “Q. Do you know where the laborers came from? “A. No, to say just where they came from. I don’t know where they came from. “Q. I am talking about with reference to when they called at your place of business, the Monroe Hardware Company? “A. I would not actually see them leave the building down there — sometimes I would. “Q. Where did you see them? “A. On the building; there at the building. “Q. Woodmen of the World building? “A. Yes, sir. “Q. What were they doing? “A. Working for Mr. Welch. “Q. These laborers you saw working for the Woodmen of the World or on the Woodmen of the World building, under Mr. Welch, were the same laborers that called at the Monroe Hardware Company with these orders? “A. Yes, sir.” Mr. Kramer testified, pages 9 and 11. “Q. This is a suit here against A. Delatte, contractor, and Woodmen of the World, for certain material the Monroe Hardware Company sold to A. Delatte and used in the Woodmen of the World building on Jackson street. Examine what purports to be an itemized statement of the [70] material sold and state whether or not any of that material listed there actually went into the construction of that building. Confine your answer to your own knowledge. ' “A. Yes, sir, here is an item I sold myself. “Q. What item is that, Mr. Kramer? “A. Two sets of front door locks. “Q. The invoice price of those articles are what? “A. $25.20. “Q. Did you know Mr. Welch? “A. Yes, sir. “Q. You know what connection if any he had with Mr. Delatte? “A. I know that Mr. Welch introduced himself as ■ foreman in charge of — Mr. Welch purchased the material from me. Did not directly wait on him for that building. “Q. What, if anything, did you ever see Mr. Welch do in connection with this Woodmen of the World building? “A. I visited the building on several occasions during the construction and I saw Mr. Welch directing the men how to — one particular occasion they were installing frames on the rear of the building, second floor. “Q. Do you know he was in charge of ■the construction of the Woodmen of the World building? “A. Yes,' sir, he was. Newton J. Moore testified, pages 21, 25. 25. “Q. I hand you what purports to be an itemized account of the Monroe Hardware Company against A. Delatte, designated as plaintiff ‘1’, and ask you to state whether or not that account is true and correct, and made from the books of the Monroe Hardware Company? “A. It is correct. “Q. In saying that the account is correct— “A. Correct at the time it was made. “Q. How is that? “A. The statement is correct at the time it was made. John J. Fuerriero testified, page 29. “Q. State your name and occupation? “A. Jno. J. Guierrero; combination stenographer and bookkeeper for Monroe Hardware Company. “Q. I hand you herewith document marked Plaintiff T, and ask you to examine it and state what it is. “A. Account against A. Delatte. “Q. Did you make out that account? “A. I made it out all right — in my handwriting. “Q. Is that a true and correct account as shown from the books of the Monroe Hardware Company. “A. It is correct as shown from the books; that’s my handwriting. “Q. You state that that account is true and correct? “A. As far as my knowledge it is.” Defendant offered no evidence contradictory of the above; and in our opinion the evidence clearly warranted the judgment of the trial court for the amount allowed, $176.95, and sustaining the privilege claimed. Defendant, Ouachita Valley Camp No. 10, Woodmen of the World, and Union Indemnity Company, called in warranty urge as a defense against plaintiff’s claim for a privilege that plaintiff did not have an itemized statement of its account recorded in the office of the Recorder of Mortgages as required by section 2 of Act 229 of 1916, which provides: “Any person claiming a privilege as aforesaid shall file in the office of the Recorder of Mortgages of the parish in which the land is situated a statement setting forth the amount claimed, and the items thereof as nearly as practicable the name of the owner, the name of the contractor, the name of the clainiant and a description of the property subject to the privilege verified by' affidavit. Such statement must be filed within' forty-five days after acceptance of the work by the own [71] er of the land on which the work was done or his trustee or agent.” The plaintiff filed an itemized statement, as shown in the affidavit of Sam Ivy, contained in plaintiff’s filing, page 139. This statement was fastened together as one document, and complied with all the requirements of the law, taken as a whole, and was filed within forty-five days. As to this itemized statement, C. E. Whitford testified, pages 67, 68 and 69. “Q. Were you an employee of the Monroe Hardware Company in February, 1923? “A. Yes,'sir. “Q. I hand you a document heretofore designated as Plaintiff ‘6’, and ask you to state whether or not you-have ever seen that document before? “A. Yes, sir, I have. “Q. When you last saw it, to whom did you deliver it? “A. To the Clerk of the Ouachita Parish Court, and I told him I wanted the lien and bills attached filed and recorded; and before doing so he told me I would have to get him two dollars before he would file and record it; therefore, I went back to the office and got two dollars and made out a bill marked filing and recording papers. “Q. What was the name of the gentleman? “A. John Sholars. “Q. Did you pay Mr. Sholars? “A. Yes, sir, I did. “Q. What instructions, if any, did you give Mr. Sholars when you handed him this document? “A. I gave' him instructions to file and record the paper I had there.” John Scholars testified, pages 34, 35 and 39. “Q. I ask you to examine Mortgage Record 97, page 531 et seq. and state whether or not the invoices or itemized accounts which are attached to that affidavit are recorded in that mortgage record? “A. I have got a big batch of papers in one hand and a book in the othei% and I have to check this over to see how much is recorded. There is one itemized statement here recorded. According to my recollection about this — which is in my hand and which I signed — the) e was instructions written on here in my hand to record one of these itemized statements. I see in Mortgage Book 97, page 531, there is some itemized statements recorded, but if you ask me to say what part of this filing here, the original, is recorded in the mortgage record I would have to take it and check it out. “Q. Are the itemized invoices which are attached on under the itemized statement recorded in the mortgage record? “A. I don’t know. I never saw the mortgage record until just now, and I don’t know what is in there. “By the Court: Check it out and see. “A. Can I make a statement like I checked it out. “By the Court: Yes. “A. I want to say this: This first affidavit is recorded and the sworn itemized statement giving the date and amount is recorded. On the first statement there are about thirty-two sheets attached to that giving the date and amount and describing the articles which are not recorded; and following that is another sworn itemized statement, giving date and amount, which is recorded, according to instructions, and attached to that is a batch, of about fifty sheets describing the articles, the date and amount which are not recorded. “Q. One clip holding them all? “A. Yes, and I made that filing in both places in order to identify all these papers with this lien. I don’t know why I did that. I didn’t have to do that but I did that to identify all these papers to identify them all with the lien. I want to make it clear that it is the one filing.” Under this testimony we are convinced that the itemized account as a whole was filed in the office of the Recorder óf Mort; gages and the fact that the clerk failed to actually transcribe on the mortgage records the name of each item mentioned [72] on the itemized account but only gave in the mortgage record a list of the amounts and dates, cannot, in our opinion, defeat the plaintiff’s claim of a privilege. The names of the various items were contained on the itemized statement filed and this, in our opinion, was sufficient, under the conditions as shown by the evidence in this case. Defendant, Ouachita Valley Camp' No. 10, Woodmen of the World, insists that its motion to require the plaintiff to elect on account of inconsistent and conflicting allegations, should have been sustained. We have carefully read the plaintiff’s petition and as we construe it the allegations are consistent and support the prayer of the petition. Its prayer is in the alternative, and in the alternative only. It asks that if Ouachita Valley Camp No. 10, Woodmen of the World, is not held to be liable in solido with A. Delatte, the contractor, then that it be decreed t'o have a privilege on the building of Ouachita Valley Camp No. 10, Woodmen of the World. There is no inconsistency in its prayer for judgment against Ouachita Valley Camp No. 10, Woodmen of the World, and its prayer that its privilege, as furnisher of material, be recognized and enforced against the building of Ouachita Valley Camp No. 10, Woodmen of the World. The Union Indemnity Company, called in warranty, insists that the petition of Ouachita Valley Camp No. 10, Woodmen of the World, does not express a cause of action against it, and its counsel argue with great force that Ouachita Valley Camp No. 10, Woodmen of the World, is seeking" to invoke a concursus proceeding without having first deposited in the registry of the court the balance due on the contract price. We think the call in warranty on the part of Ouachita Valley Camp No. 10, Woodmen of the World, does express a cause of action. It gives in detail the amounts claimed to have a privilege on the building of Ouachita Valley Camp No. 10, Woodmen of the World, as' filed by the various claimants, and alleges a privity of action between Ouachita Valley Camp No. 10, Woodmen of the World, and the Union Indemnity Company as to the laches of the builder, A. Delatte. We think the Union Indemnity Company is entitled to have the judgment herein recorded against it modified so as to restrain its execution until Ouachita Valley Camp No. 10, Woodmen of the World, shall pay into the hands of the warrantor or deposit in the registry of the court, to be applied on the claims of the privilege creditors mentioned herein, the sum of $1109.40. It is, therefore, ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby affirmed, except that part of the judgment in favor of Ouachita Valley Camp No. 10, Woodmen of the World, and against Union Indemnity Company, and that part of the judgment is so modified as to stay execution thereon until Ouachita Valley Camp No. 10, Woodmen of the World, shall pay over to Union Indemnity Company, or deposit in the registry of the District Court of Ouachita parish, subject to the privilege claims mentioned in this suit, as impart the sum of $1109.40; and that as thus amended the judgment of the lower court is affirmed. The costs of the trial court to be paid as provided in the judgment appealed from. The costs Of the appeal to be paid by the Ouachita Valley Camp No. 10, Woodmen of the World.