
    G. H. A. THOMAS COMPANY VS MRS. MAMIE EVANS & ARTHUR EVANS, HER HUSBAND
    NO. 8911
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL. JUDGE
    MARCH 5, 1923.
    
      
    
   By WILLIAM A. BELL, Judge

Hill is a suit by plaintiff for tne valúa of oartain mataríais furnished and usad in repair of a oartain building. The action is brought against the alleged owners of the building, from jrhom plaintiff seeks to reoover the sum of $144.46. Thera was Judgment for this amount in favor of plaintiff and defendants have appealed.

We find from the evidence that the plaintiff sold and delivered certain lumber to one H. Rhodes, as appears from an itemized statement filed in the reoord, deliveries of said lumber having bean made between July 8, 1921, and August 5, 1921, and used in the repair of a building belonging to the defendants, who had contracted with the said Rhodes to repair their residence for the total sum of ‡400.00, all in aooordanoo with the written oontraot between the defendants and the said Rhodes, also in the reoord of this case. It appears that the entire prioe of the oontraot between defendants and the purchase of this lumber was paid by the defendants to the said oon-traotor under six oartain installment payments, receipts for which are also found in the record, and the last receipt of which declares that the full amount of the oontraot has been paid, this last receipt bearing date August 9, 1921.

On April 24, 1922, eight-and-one-half months after the completion of the work by Rhodes, the plaintiff in this suit served an attested aooount on defendants, and on the seme data recalled in the Mortgage Office of the Parish of Orleans a copy of the attested aooount, duly sworn to, and bearing on the property of the defendants herein. This aooount showed a total of $142.96, and, in addition to this amount the oust of recording said attested aooount, in the sum of $1.50, is prayed for in plaintiff's petition. There is no prayer in the petition for recognition of waafiy' lien and privilege.

Defendants have answered this salt, pleading that the plaintiff’s petition dlsolosea no oansa of notion; that H. Rhodos, the contractor, should have hoen nado a party thereto, and, on the merits, denying oertain allegations or the petition. It is alleged that they apeoially deny ever having bought any lumber or building material from the plaintiff, but that they did have a oontraot with the said Rhodes for repaira to their property, and that said oontraot having been fully performed, they made full payment of the oontraot pries to the said Rhodes, and never knew that Rhodes was Indebted to the plaintiff until April 24, 1922, the date upon whioh the attested aooount was served end filed. It is further averred in defendants' answer that they were duly served with said attested aooount and that a copy of ■ame was recorded in the Mortgage Offloe oü(April 24, 1922, but that they deny the right of plaintiff to serve said attested aooount after the delays allowed by law had expired; and it is further averred that the attested aeeeunt was not seasonably served, and that there should be an order entered directing plaintiff to oanoel seme at plaintiff’s expense, thus relieving defendants’ property of the oloud resting on the title to their property.

Shore was judgment for the plaintiff in the amount prayed for without reoognition of any lien and privilege.

Shore is a letter in the record addressed to the plaintiff by defendants' attorney, bearing date April 21, 1922, three days before the reoerdatien of the attested aooount. Shis letter is in response to one addressed to the defendants by the plaintiff, and it is argued by plaintiff that defendants, through their counsel, have admitted in this letter- their liability to the plaintiff. We have examined the oontents of this letter with oare/ and find there is nothing in it by whioh the liability of Rhodes, the oontraotor, to the said plaintiff has in any manner been assumed by the defendants, nor is there anything in the sai a letter which could have induced the plaintiff to delay in the assertion of it's lien, as provided hy law. The period for recording the lien had ¿Lapsed hy many months at the time of the writing of said letter, and it's contents may, therefore, he wholly disregarded, the same being immaterial to the issues in this case.

We find the facts in this case square in every respect with those which we have heretofore considered in the case of Roca Lumber Co. v. Price & Chambers, No. 8741 of the docket of this court, and decided hy us on February 5, 1923. The same law applies to this case as was observed in the oa3e just cited, and the plea of prescription now urged by the defendants in the instant case must be maintained

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment herein appealed from be and the same hereby is reversed, and IT IS HOW ORDERED, ADJUDGED AHD DECREED that there be judgment in favor of the defendants, Mrs. Mamie Evans and Arthur Evans, her husband, dismissing plaintiff's suit at plaintiff's coats in both courts.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the lien and privilege recorded in the Mortgage Offioe of the Parish of Orleans in favor of G. H. A. Thomas Company, in the sum of $142.96, be duly cancelled and annulled, the same appearing in Mortgage Offioe Book 1270, Folio 163, and bearing against the following described property:

"Ho. 1732 Constantinople Street, in the square bounded by Constantinople, Marengo, Baronne and Carondelet Streets, being Square Ho. 433."

The cost of said cancellation to be borne by the plaintiff herein, the G.H.A. Thomas Company, and being hereby taxed against said plaintiff as part of the judgment herein rendered.

JUDGMEHT REVERSED.

MARCH 6, 1923.  