On Rehearing.
SOMMERVILLE, J.James Musey, the owner of a building in course of construction, has filed this concursus proceeding under the provisions of Act No. 262, 1916, p. 536. He has cited the contractor, his bondsman, and the several furnishers of materials, who had recorded their statements in the office of the recorder of mortgages of the parish of Calcasieu. He deposited $746.37 in court, and asked that it be distributed among the parties defendant in the proper proportions, and that he and his property be released from all liability to defendants.
Defendants, the furnishers of materials, answered that plaintiff was not entitled to proceed under the provisions of Act 262, or to claim any benefits thereunder, for the reason that he did not record his contract (which was in writing) in the mortgage record office; that he did not require a bond from the contractor in proper form or for the benefit of furnishers of materials, as specified in the act he should have done; and that he did not record the bond in the mortgage records for 53 days, instead of within 30 days after date of contract.
Judgment in the district court was in favor of the materialmen, which was reversed by the Court of Appeal, and the judgment of the latter court is before us for review.
It would appear in this case that the materialmen involved did not offer proof to the effect that they had served attested accounts on the owner, although, the evidence shows that they filed their attested accounts in the office ■ of the recorder of mortgages, under which they claim liens and privileges as operating upon the property of the plaintiff to the extent of their claims, amounting to $1,896.44, which is less than the bond, or less than one-half of the contract price for the building.
The question therefore presented for decision is whether it was necessary for the materialmen to prove the filing of attested accounts on the owner to preserve their liens and privileges.
In a somewhat similar ease, La. Glass & *77Mirror Works, Ltd., v. Irwin, 126 La. 555, 52 South. 765, in construing the building statute of 1906, No. 134, p. 223, it was held that the materialmen and laborers' who had failed to serve attested accounts on the owner,, although they had filed attested accounts in the office of the recorder of mortgages, could not invoke the provisions of the act against the owner who had failed to require a proper bond and to record the contract and bond in the office of the recorder of mortgages within the time specified in the act. That decision was rendered in 1910, and in 1916 the Legislature passed Act No. 229, p. 494, and Act No. 262, p. 536. These two acts are on kindred subjects, and they must be construed together, remembering that Act 229 “shall not be construed to repeal or affect the operation of Act 167 of 1912, as amended by an act adopted at this session of the General Assembly.” Act No. 262 (section 11, Act. 229).
Act 229 is entitled:
“An act to provide for the creation, recognition and recordation of the liens and privileges of laborers, contractors, subcontractors, materialmen, mechanics and furnishers of machinery or fixtures, and to enforce the payment of said liens and privileges, and to repeal all laws in conflict herewith”
—while Act 262 like the Act 134, 1906, provides means for the owner to protect himself by requiring a bond from the contractor, and the recording of said contract and bond within a stipulated time. It is entitled an act to amend section 1 of a certain other act, which is entitled:
“An act relative to building contracts in this state; providing for the bond to be given therein, for the protection of the owner; subcontractor; workman; laborer; mechanic and furnishers of materials, for the recordation of the same, and the proceedings to be had thereunder.”
Act 262 is limited in its application to contracts exceeding $500 in amount; and it is stipulated they must be in writing, that they must be secured by sufficient bond in one-half of the amount of the contract, made in favor of the owner, contractor, subcontractor, materialmen, laborers, etc.; and the contract must be recorded, together with the bond, in the recorder’s office within a fixed time.
The contract in this instance was not recorded by the owner; and the bond was not taken in favor of the materialmen and laborers. And, further, the bond was not recorded within 30 days after the signing of the contract. For the reason that none of these things were done by the owner, we are of the opinion that he cannot claim the benefits of the provisions of Act No. 262, which was adopted for his protection, as well as for the protection of contractors, etc.
Section 1 of Act 262 provides that the furnishers of materials, etc., must file .sworn statements of their accounts with the owner, and record such sworn statements in the office of the recorder; and the question now remains whether the materialmen, who failed to prove that they had filed attested accounts with the owner, but who proved that they had filed them in the office of the recorder of mortgages, can take advantage of the failure of the owner to do his duty in the premises and hold his property liable to their liens and privileges for the supplies furnished " the building.
It was argued by counsel for the material-men that it was unnecessary for the material-men or the furnishers of materials to lile sworn statements with the owner; that it was only necessary, in order to obtain and preserve their liens and privileges, to file such sworn statements with the recorder; and this they did; and that Act 229 was passed to meet the defense sustained in the La. Glass $ Mirror Works Case, supra.
These two acts, when construed together, would seem to make it unnecessary for the materialmen, laborers, etc., in order to preserve their liens and privileges on the property of the owner, to file sworn statements •with the owner. For Act 229, in giving to the *79materialmen, laborers, etc., privileges upon building being erected, directs, in section 2, “that 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,” etc. There is therein contained no requirement that the statement (Should be furnished to the owner.
' We are of the opinion that Act 229 refers to all building contracts, regardless of amount, whether verbal or in writing, where no bond, or a defective bond, is given by the contractor, and the contract and bond are not recorded in the manner provided for in Act 262; and, as none of these things were done by plaintiff in this cause, the material-men, defendants, have the right to assert their liens and privileges given them under Act 229. If Musey, the owner, had availed himself of the provisions contained in Apt 262, and demanded the cancellation of the recorded liens and privileges of the material-men we would have to consider, under paragraph 3 of section 1 of that act, whether it was necessary for the materialmen to have served attested accounts upon him, the owner, to enable them to have sued upon the bond he had taken. But under our view of the case he was not in a position to avail himself of the provisions of Act 262, and the claims of the materialmen are to be disposed of under the terms of Act 229 which does not require that such claims should be attested and filed with the owner.
It is therefore ordered, adjudged, and decreed that the judgment of the Court of Appeal herein be -annulled, avoided, and reversed, and that there now be judgment affirming the judgment of the district court. Costs of the Court of Appeal and of this court are to be paid by James Musey, plaintiff.
PROVOSTV, J., dissents. O’NIELL, J., concurs in the decree.