
    5294.
    (Court of Appeal, Parish of Orleans.)
    REIMANN MANF’G. CO., LTD. vs. E. B. VASQUEZ, ET AL.
    
      1. The method of fixing individual liability upon an owner, who has failed to comply with the provisions of Act 134 of 1906, is regulated by the statute, itself, and not by the Articles of the Civil Code relative to the method to be pursued in order to preserve the privilege as against third persons.
    2. Failure to serve 'the owner with a sworn statement, or to record the same in the mortgage office, within forty-five days after the completion of the building, is a matter of defense which need not be anticipated by the petition.
    3. Exceptions of no cause of action founded only upon defective pleadings, can not put an end to the controversy, and are not favored when based on mere failure to state “time, place and circumstances.”
    4. Where the error in the judgment appealed' from is attributable largely to loose pleadings on the part of the appellant, he will be taxed with the costs of his appeal even though ht. succeeded therein.
    Appeal from the Civil District Court, Division “D.”
    A. Guilbault, H. "Wl Robinson, for plaintiff and 'appellant.
    Hoover,-and Hennessey, for defendant and appellee.
   ST. PAUL, J.

Plaintiff, a furnisher of materials, brings this suit against the 'contractor, and the owner of the building who failed to exact bond and etc., under the terms of Act 134 of 1906.

The owner set up an exception of no cause of action because the petition failed to allege that plaintiff bad recorded bis claim within- forty-five days after the completion of the building, and because the sworn statement served upon him and recorded in the mortgage office was not detailed 'as required by Article 3272 of the Civil Code.

. Prom a judgment maintaining this exception plaintiff appeals.

Article 3272 Civil Code has no application to this controversy. The article refers only to the method to be pursued in recording privileges in order to preserve them against third persons. The method of fixing personal liability upon an owner is- regulated by tbe provisions of Act 134 of 1906. That act requires only that a “sworn statement” of the claim be served upon the owner and recorded; the act doea not require that the statement he detailed.

In the case at bar the petition sets forth that plaintiff furnished certain “factory work” under an estimate approved by the owner, which materials were accepted and used in the building; that a sworn itemized statement was served on the owner and recorded.'

The statement is 'annexed and shows certain items, fully detailed and one item of “Factory Worh” for which a lump sum of $415.00 dis Charged.

We think such a statement was sufficient. The position 'dearly means that the “Factory Work” was, furnished on one contract, of which the owner had full cognizance. For the purpose of holding him individually ‘ liable it was sufficient that he should have received notice, through the sworn statement served upon him and recorded in the mortgage office, that the amount of the contract was still owing land unpaid.

It is not necessary for the purposes of this case to determine whether such a sworn statement would be sufficient to give and preserve a privilege as against third persons.

Of course plaintiff can not recover under its pleadings without establishing that such a contract was made laud that defendant had knowledge of it.

II.

The petition does not set forth in so many words that the account was served and recorded within forty-five days after the 'completion of the building, but it does set forth that it was isierved and recorded “in order to preserve the liens and privilege allowed by law,” and the account annexed shows the date of recordation.

It would perhaps have been better to allege, pro forma at least that the sworn statement was served within the forty-five days; but the date of the completion of the ■building is a matter which is peculiarly within the knowledge of defendant, land if 'the service and recordation were not miade within forty-five days thereafter it is a matter of defense to be set up in the answer, and which plaintiff was not required to anticipate.

And we are all the more inclined to this view because ifc'o maintain an exception of no cause of action founded only on defective pleadings would not put an end to the controversy (Succession, Heber, 119 La., 1064), and ' the exception is not favored where there is a mere failure to state “time, place and circumstance.”

April 17, 1911.

Rehearing refused, May 29, 1911.

Goldsmith vs. Virgin, 122 La., 335.

III.

But plaintiff’s petition is undoubtedly very loosely drawn. Defendant was entitled to know in this suit on what date plaintiff claims to have served him with an ■attested account and also the items furnished under the contract for “Factory Work,” in order that he might be able to prepare his defense.

This, however, is a matter which comes up only under the exception of vagueness, which, of course, was not passed upon iu the court a qua, and hence may not be before ns. But we mention it for this reason only, that whilst we think it was over technical to maintain the ■exception of no cause of action; it was nevertheless plaintiff’s own loose pleadings which led thereto and necessitated this appeal. Hence, under the discretion allowed us by Act 229 of 1910, we shall tax plaintiff with the costs of this appeal.

It is, therefore, ordered that the judgment appealed from be reversed and set aside and the case' is now remanded to the court a qua to be proceeded with according to law, the costs of this appeal to be borne by appellant.  