Julius Aaron & Son v. Keyser

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

In an able brief filed in

support of her application for rehearing, counsel for Mrs. Josephine Keyser earnestly contend that our original decision herein is erroneous in holding her liable under Act 262 of 1916, and that Act 229 .of that year is the sole measure of her liability.

*656They confidently urge ■ that the question was determined favorably, to their contention in the cases of—

Rose vs. Eunice Theatre Co., 154 La. 97, 97 South. 322; McKinney vs. Eunice Theatre Co., 154 La. 94, 97 South. 327.

McNaspy vs. Eunice Theatre Co., 154 La. 96, 97 South. 327.

They quote the following from the Rose case.

‘‘If the owner complies with these conditions the Act (No. 282) is put into operation and works to his benefit by enabling him under certain conditions to rid his property of the privileges recorded against it before their payment and to throw the claimants on the bond.”
“If he elects not to come under it, or fails to comply with the conditions imposed upon him, or does the work in such manner as not to come within its provisions, those with whom the owner has contracted, verbally or in writing, and those with whom the contractor has contracted, may resort to Apt 229. So viewed the two acts are not conflicting. Each operates within its own sphere.”

They also cite Musey vs. Prater, 147 La. 71, 84 South. 498, and quote therefrom as follows:

“We are of the opinion that Act 229 refers to all building contracts, regardless of amount, whether verbal or in writing, where no 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 lien and privileges given under Act 229"

They conclude by saying that our opinion overrides both the Act 229 and the interpretations placed on it by the Supreme Court.

We have re-examined the question with great care and are constrained to adhere to our original opinion.

In the Eunice Theatre cases the contests were solely between furnishers of material and mortgagee whose mortgage was recorded prior to the registry of the instruments relied on to preserve the material-men’s, liens.

The question of the owner’s personal liability not being involved, whatever was said on that question was obiter dicta.

The questions were in favor of the materialmen.

In the Musey case, the owner had made a contract and taken a bond, but the contract was not recorded at all and the bond was not as it should have been, in favor of the furnishers of material and labor, nor was it recorded in the time required by the Act No. 262. For these reasons the court held that the owner was not entitled to the benefits of the Act No. 262- and the materialmen could claim the benefits of Act 229.

But this is far from holding that by failing to take a bond the owner can deprive the materialmen of the rights given them by Act No. 262 and free himself from the liability that Act places on him. To so construe the Act would read out of it one of its most important provisions, namely, that part of it which says:

“If the owner fails to secure bond * * * the owner shall be in default and shall be liable to the same extent as the surety would have been.”

The Supreme Court certainly did not’ mean that the Act would come into operation only when a bond was taken when this part of the Act makes express provision for cases where it is not taken.

In saying, in the Rose case:

“If he (meaning the owner) elects not to come under it or fails to comply with, the conditions imposed upon him, or does the work in such manner as not to come within its provisions, those with whom the owner has contracted, verbally or in writing, and those with whom the contractor has contracted, may resort to Act 229.”

*657The court meant no more than to say what it does, namely: That those with whom the owner or the contractor had contracted could resort to Act 229. The court did not mean and did not say that, that they could he confined to Act 229 as the sole measure of their rights and thus shut them out from any rights accorded to them by Act 262. Nor ' did the court mean or say that by. failing to comply with the conditions of that Act the owner could free himself from á liability imposed on him by the Act for the very reason that he did fail to comply with its provisions.

A party may waive his rights but he cannot waive his responsibilities.

In Louisiana Glass & Mirror Works vs. Irwin, 126 La. 555, 52 South. 765, the court, construing Act 134 of 1906, held that a materialman could not recover because no attested account was served on the owner within forty-five days after completion of the contract and no sworn account was recorded in the mortgage office. Such service and registry within that time were .necessary under that Act, but under Act 262 of 1916 such service and registry are only required to be made forty-five days “after the registry of notice with the recorder of mortgages by the owner of his acceptance of the work; until which time the delay to file privileges will not run”.

In this case this notice had not been recorded at the time of the trial.

There is no difference between the two Acts. Act 134 of 1906 says the purpose of this act is to require owners to secure bond with solvent and sufficient surety from the undertaker * * * for the protection of all parties interested in the contract as their interest may appear and which surety is to stand in place and stead of a defaulting contractor.

Act 262 of 1916 says “the purpose of this act is to require owners to secure bonds with solvent and sufficient security of the undertaker * * * for the protection of all parties interested in the contract and as their interest may appear, and said surety and in default of surety the owner is to stand in the place of the defaulting undertaker, contractor, master mechanic or engineer”.

Under Act 134 of 1906 if no claims were presented or recorded the owner could demand cancellation of the bond after forty-five days from completion of the contract.

Under Act 262 of 1916 the owner can demand this cancellation only after forty-five days from registry of his notice of acceptance.

In the Louisiana Glass & Mirror Works case the court said that under Act 134 of 1906 a materialman who had failed to file a sworn statement of his claim with the owner and to duly record same within the delay of forty-fiye days, has no right of action on the bond which may be summarily erased and cancelled on the demand of any party in interest.

We do not understand this to mean that he never had a cause of action but rather that his right had been extinguished.

But that cannot be said of a materialman who though he has not recorded his claim or served an attested account is yet in time to do so.

The most that can be said of a suit brought before such service or registry is that it is premature. But prematurity must be pleaded in limine litis, which was pot done in this case.

See 6 Louisiana Digest, verbo “Pleading”, paragraph 60.

If it had been, the proper course would have been to sustain the plea, but then the plaintiff could have made proper service and registry and then (unless in the meantime defendant had recorded notice *658of acceptance and forty-five days had elapsed) could have renewed his suit.

Contracts are not the only sources of obligations. The law itself is sometimes a course and we think it is in this case.

Section 1 of the Act clearly states that if the owner fails to secure bond he shall be in default and shall be liable to the same extent the surety would have been; and states, further, that the purpose of the act is to require owners to secure bonds for the protection of all parties in interest, which surety, and in default of surety the owner, is to stand in the place of the defaulting contractor.

Under this clear language Mrs. Keyser is to stand in the place of the 'defaulting ■contractor, Dearing, and as he is clearly responsible for the material bought from plaintiffs, Mrs. Keyser is likewise responsible.

Counsel complains also of our saying that the case is well founded in equity, and ask “why should defendant pay the contract price and then pay the unpaid bills of the contractors?”

It seems clear to us that no contract between defendant, Mrs. Keyser and defendant, Dearing, and no payments made under that contract could give Mrs. Keyser any equitable right to keep plaintiffs’ property without paying for it. It was once theirs. It is now hers. Presumably it was worth the price charged.. If plaintiffs fail to recover it is a dead loss to them. If they do recover, it is not necessarily a loss to her and it may be a mere disappointment. The entire work may be worth all it cost, including this claim. If, however, it is a loss, to Mrs. Keyser, it must be because she or those acting for her allowed Dearing to draw too' much on the contract price without seeing' that he paid for the the material which went to improve her property.

Rehearing refused.