
    NO. 7621.
    AMERICAN BREWING CO. VS LOUIS ARTIQUES.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPIIIOH.

By his Honor

John 3t. Paul.

Plaintiff aoquirad a mortgage and randor'a lian upon defendant'a property, and thereby a lion on the fire insurance covering same (Act 868 Of 1914 p. 689)

Ihe property was damaged by fire, and plaintiff oolleoted the unt of the loas; which (with the consent of defendant) it Imputed to partial extinguishment of a certain open aooount due It by defendant,

Bendish A He mande* were employed to repair the fire damage and started to do so. When they had practically completed the work (that is to say #248 out of #296) another fire occurred; and again plaintiff oolleoted the amount of the loss. This amount it now imputed (with the consent of defendant) in part to the final extinguishment of the open aooount, and the rest upon the mortgage note.

Plaintiff then foreclosed, but the prooeeds of sale did not suffice to extinguish both the mortgage, and the lien which Bendish A Hernandez had in the meantime recorded against the property; whereupon plaintiff took this rule to cancel the latter's lien on the ground that it was not recorded in time to prime plaintiffs' claim.

II.

It is quite true that Bendish A Hernandez failed to record their lien in time to give it preference over pre-existing encumbrances. But the oircumstances under whioh that ooourred wore as follows;

I. The oontraot for repairs was made not only with the defendant, but plaintiff itself was a party thereto.

2. Bendish A Hernandez were called upon by plaintiff (in making proofs of loss for the seoond fire) to make proof concerning the work done by them; and that work was taken into consideration in adjusting the loss.

8. The proofs of loss furnished by Bendish A Hernandez were made after a promise to pay by plaintiff's secretary; and only upon an expresa promise by plaintiff's attorney that the olalm would be paid out of the insurance money.

This was the testimony giren in op^njoourJ (with the written oontraot before it, addressed to the and is absolutely uncontradioted, but on the contrary praotloally admitted; and evidently relying upon these promises, Bendlsh It Hernandez did not reoord their claim, but waited to be paid.

III.

Thereafter plaintiff collected the insurance money, without the knowledge of Bendlsh It Hernandez; and then flatly refused to pay the latter, who then (and then only) prooeeded to reoord their claim.

IT.

As plaintiff was a party to the oontraot with Bendlzh s> Hernandez there was no need for the latter to reoord it so as to affect plaintiff.(C. C. 8274)'

But eren if plaintiff had not been a party to the oontraot the course it pursued was such that it is now estopped from setting up the. want of registry. For where a person leads another into the belief that his claim is safe without the necessity of recording same, he at least cannot thereafter complain of the want of registry and draw for himself any advantage therefrom. Burdeau vs Dorsey, 7 Orleans Appeals 360; Mc Duffie vs Walker, 126 La 152.

The judgment of the court below(based upon other considerations not pettinent now) ordered the cancellation of the inscription purely and simply. Henoe it must be amended by providing for the payment of the claim.

Sinoe the above was written we notloe that we erroneously stated that part of the insurance money was imputed to the mortgage note. This was error; on the oontrary, plaintiff having received #1696 imputed only #1300 to the open account, which left #296 in suspense, being exaotly the amount of the Bendish claim. This oonfirms us in the conclusion that plaintiff first meant to pay the olalm, and aotually reserved the money to do so.

It la therefore ordered. that tha judgment appealad, fro* ha amended by adding thereto that the Clrll Sheriff he directed to pay to Bendleh It le mande x, out of the proseada of sale now In hla hands, the atm of Two landred and forty two Bollara f$£dS) and the coats of these proceedings; and as thus tus*ndad the judgment Is affirmed.

ON APPLICATION POR REHEARING.

Per Curiam;

His Honor

John St. Paul Judge.

Plaintiff asks for a rehearing heoause (quoting from the '.'brief), "This was a rule to cancel a mechanics lien against the mortgaged property. The lien was olaimed under a contraot with _t££. ownerjrf of the property. The oourt was asked to decide whether there was a iien, and both sides conceded this was the issue „ Your Honors have decided a wholly different question, as is evidenced # by the qyllabus of the opinion, x x x x The American Browing CO. was not a party to this contraot, although the court has unconditionally made the statement that it was. x x x x"

The first paragraph of our syllabus reads; "As between •parties to a contract, registry thereof is not requiredj"jln support of which we cited C. C. 3274

'lie did state that "plaintiff was a party to the contract," and we made that statement upon the unoontradioted testimony of the Claimant (Bendishh, p„ 13 and again p. 3) that the contraot was faddressed to the Brewery", that the Brewery through its Secretary, "had a copy of it." This contraot was signed by Bendisoh and by Artiques, and was sent to the ###### Brewery for signature by it, because (in the language of the brief) the Brewery "had an interest as a mortgagee in seeing that the contraot Tray’cotipleted". and because it had collected, or was about to collect from the underwriters, the cost of the very repairs to be made by Bendisoh. If the Brewing Comparer did not sign the contraot, it »«- only an oversight, and its signature thereto was wholly unnecessary when it permitted the work to go on under that contract.

Por Bendish had a right to hallara, and did heliara, that the inauranoe mousy viao to ha used to pay the repairs whioh ha was about to make, for the benefit and with the knowledge of the Brewery,

Hor was that belief unfounded, for according to the mcontradioted testimony of Artigues the Brewery collected $1596 of insurance, according to the testimony of Boulet only ‡1000 was imputed to the open aocount, and the note and pleadings show that the balance of $295 was not lnputed on this laBt account. So that the $295^flllfíHfrM»as therefore never imputed to either aocount, but held apart for soma purpose whioh could be none other than the payment of this claim.

We think these circumstances warrant the finding of an implied (if not express) promise on the part of plaintiffto pay Bendisoh for the work, out of the money collected from the insurance company for that purpose, and hence plaintiff "was a party to the contract”.

The question "whose credit wa3 pledged” on a contract, iB one depending on the particular circumstances of each casa. $té Campbell vs Hicholaon, 12 Rob 428.

Rehearing refused.

New Orleans La, January 12th, 19120  