
    NO. 8292
    COURT OF APPEAL PARISH OF ORLEANS
    LOUIS D. ROUYER versus PAUL L. FOURSCHY
    
      
    
   Dinkelapiol} J*

Pls.intiff sues, averring that he -was employed by the defendant to do oertein vrork and furnish material on property jr,sd by defendant on Esplanade Avenue and Burgundy Street, and also to do work and furnish material on property owned by de<*•'*"fend'-nt on Governor Hioholls and Marais Streets;and averring that ssid work was done, and materials furnished, that s^me v.'t-s dene properly and in accordance with verbal agreements and oontraote between plaintiff and defendant. He preys for judgment in the sum of $493.05, together with interest from August 3rd, 1918, and also for recognition of the lien and privilege on the property belonging to the defendant. An itemized account, is annexed to the petition and made part thereof.

Defendant filed exceptions, that petition was too vague,-- general and indefinite, and petition disclosed no legal cauee or right ox action. Subsequently defendant filed virtually a general denjral, denying each and every allegations in plaintiff's petition, but admits having ma.de r.av;noee to plaintiff by fer in excess of $325.00, but denies thst same were payments on acoount of the alleged ■ bill for vrork end materials furnished and denies hv’lng mf.de any payment on account of the pretended el"im ts set forth in plaintiff's petition.

Wherefore he preyed for judgment in his favor.

The evidence of plaintiff, together with that of Paul A. Vernsuille ’-nd Octave Honbognet, the two latter being vorkmsn employed by plaintiff in making repairs on defendant's property, after careful exemin-tion, satisfies us th‘b plaintiff and defendant con-rioted together t the times st* ted .--nd th--t pi. intiff dons work for the defend;nt ,'r;.m time to time in the presence meet of the time of de..'end'-nt himself who p..id on account of this vrork sums fgreed on, vni .hilst, as w.e uoubtlsis the opinion c-f the Judge below, th”t some of the v/orl-, w;s not properly done, we are satisfied tin-1 on tie whole the amounts allowed by the Court aquo was correct; he evidently gave oredit to the defendant for all work improperly done and mnterifls not in accordance with agreement, and therefore reduced plaintiff'e claim from §493,05, to §170,00, KHdxwxx and we are satisfied that this is substantially a correct and valid judgment. The Judge had the opportunity of seeing and hearing the witnesses, noting their demeaner End in every w6.y w-.s thus better qualified to judge of the truth of their statements ehk then we are and mainly questions of fact being involved we deem it he unnecessary to further enter into the contradictory testimony in this case. But the-Judge in his judgment also gave this judgment together with a lien and privilege on the property cf the defendant, which under the lew, we do not think should be allowed.

Civil Code, Art. 3373, referring to Contractors, Workmen end Msterial Men. "Architects, undertakers, bricklayers, painters, master builders, contractors, subcontractors, journeymen, It borers, sxrjasekk CEi’tmsn, masons and other workmen employed in constructing, rebuilding or repairing houses, buildings, or unking oth^r works; those v/ho have supplied the owner cr other person employed by the: owner or his agent or subcontractor 'with materials of any kind for the construction or repair of his buildings or other works; those who have contracted, in the manner provided by the police regulations, to m; ke or put in repair the levees, bridges, oti.nc.ls and rcs-ds of a proprietor, presei-ve their privileges, only in eo far as they have recorded, with the recorder of mcrtg’-ges in the parish where the property is situated, the act containing the bargains they have msde, or n detailed 3t-tement of the amount due, attested under the octh of the party doing or having the work done, or acknowledgment of what is due to them by the debtor."

Under the plain provisions of the Artiole above quoted, the oontraot in- question not having been recorded as the .law requires, the lien and privilege as rendered under the Judgment must be annulled.

For the reasons assigned, it is ordered, adjudged and deoteed, that the Judgment of the Court aquo be Bnd the same is hereby affirmed in so far as rendered in favor of plaintiff Louis D. Rouyer and against the defendant, Paul L. Foursohy, for the sun. of $170.00 with legal interest from August 3rd, 1918; and

It is further ordered, adjudged and decreed, that the judgment rendered which gives lien ahd privilege on the property desoribed, be annulled and set aside end in that respect that portion of-the judgment is reversed; oosts of both Courts to be paid by defendant;

And as thus amended, judgment i3 affirmed.

-Judgment amended and affirmed-  