
    J. V. ROCA LUMBER & HARDWARE COMPANY INCORPORATED VS. C.H.FRICK & R.B.CHAMBERS, IN SOLIDO
    NO. 8741
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    VGEET4M A. EBEL, JUDGE
    FEBRUARY 5, 1923.
    
      
    
   Opinion by

WHiIIiM. A. HEEL, Judge.

This Bait by plaintiff, a furnisher of materials' used, in repair of a certain building, is brought against the owner of the building and. against the contractor, the latter defendant, as contractor, having purchased from plaintiff certain lumber unpaid for and valued at f£61.60, the amount herein claimed. There was judgment by default agpinst the contract- or, who has not appealed* but plea of prescription filed by the defendant owner was maintained, and plaintiff's suit as against the owner was, accordingly, dismissed. Rrom the Judgment maintaining the exception of prescription plaintiff has appealed. The exception is predicated upon the allegation that the plaintiff failed to serve upon the owner attetailed attested aooount or to record the same in support of its lien until almost a year after the owner had paid the contractor in full and had accepted the work: done under the contract.

There is no dispute as to the facts. The record shows the work to have been done under a verbal contract, for the sum of $£,000.00. There was no bond given or recorded. The work was begun in January, 19£1, completed about two months later, and the last installment payment made in full discharge of the above contraot price, on March £1, 19£1. The owner testifies that he knew nothing of the contractor's failure to pay the plaintiff for the material furnished until about February -9, 19££, the date upon vhieh this suit was filed and upon which the attested aooount was served and reoorded.

It is contended by appellwt that under Act ££9 of 1916, no written acceptance of the work by him as owner nor recordation of the same by him in the Mortgage Office was neo-es nary in order that the forty-fire days provided in Aot 229 ahould begin to ran in his favor against any unpaid material men seeking to assert and enforce any oxaim or privilege against him or his property, and that the attested claim, now sued upon, never having been recorded until almost a year after nls acceptance of the work, as Shown by his fall payment therefor, plaintiff's action has accordingly prescribed^

On the other hand, Counsel *r fffiranffent says that Act 262 of 1916, not aot 229 of 1916. must govern and preserve his right of action herein saed upon. It is argaed that Aot 229, not providing how.the acceptance mast be evidenced, it follows that recordation of acceptance in writing, as required by Aot 262, mast apply; far them or#, that Aot 229 applies only to oases vtoere the agreement to furnish supplies ia made dir eotly with the owner, and not with the contractor, as in this oass; and, lastly, that Aot 262 of 1916, being the last Act on the subject, superoedes Aot 229 of the sama year insofar as said Acta may be in oonfliot.

Which of the two aforesaid Acts is to be applied to the instant oase is the initial question for determination, and whether plaintiff has oomplied with the law so as to acquire the right of action pleaded by him, is the remaining question.

We find no merit in plaintiff's first contention, whioh, as we understand it, would impel the Oourt to adopt or apply that one, of two statutes similar in their legislative purposes, wmon would prove most favorable to one of the litir gante, irrespective of the applioation of either statute to the facts under consideration. Ssamination of the case of Com roy Oil Oo., 143 la., 881, does not lead ua to the oonolu-•ion that the Oourt intended to hold that Aot £29 in its entirety was applicable solely to oases in.whioh the eostraet was nade with the owner rather than with the contractor, dealing in turn with sab-contractors for-materiel and labor famished in bailding, etc., belonging to the owner. The prorisions of Seotion 3 of Aot 229 giving to any unpaid sab-contractor a privilege on any funds in the hands of the owner which may still be due the contractor, precludes any belief that the Supreme Court could have intended to hold, in the' cited'case, that Act 229 was enacted only for the protection of such material men or others «bo had contracted directly with the owner, or, on the other hand, for the protection of only such owners as nao. procure A labor, and material directly from the contractor. The last contortion of plaintiff is plainly without force as shown by the last repealing clause of Aot 229, which provides as follows:

«4 * * that this Aot shall not he construed to repeal or effect the operations of Act 167 of 1912, as amended hy an Aot adopted at this session of the General Assembly,”

meaning, of course, Aot 262.

In the present case we have already noted that no written contract existed between defendants herein with themselves, nor between uae plaintiff herein with either of the defee5.s«íí»; that n»- bonds were given or recorded, and that thongs the amount of the verbal contract was over $600.00, no written acceptance of the war Jc was given or recorded by'the owner. These facts are, in many respects, shown to he similar to the facts- existing in the ease of Musey v. Prater at al., 147 La., P. 71, where the Court on re-hearing said:

”We era of the dplnion that Act 229 refers to all buildings contracts, regardless of amount, whether verbal or in writing, where ho bond, or A defective bond, is giveá by. the contractor, and the contract and .bond are not '-recorded-in the manner provided far in Act 262.”

Sha reo or 4 proof la the ornea before as to the effest that the eatlra contract price of ‡2.000,00 was paid by the owner to the contractor leads ns to the eonelnslon that the work was formally accepted by the. owner an*, that the fallare, on the part of appellant to record his lien Within forty-fire days after, sneh acceptance mnst be fatal to his recovery.

We are of the opinion that the proviéione of Ant 289 and not those of Act 262 is the law applicable to the oase now before us, and that inasmuch as Act 229 does not proyids for the reeordatión of a written acceptance by the owner of the work contrasted fap/ as. evidence of his acceptance, proof in this case of full payment on Bareh 21, 1921, •mseiiehea sufficient evidence of aooeptanoe within the forty-five days. We think the exception of prescription has been properly maintained.

II IS, EHEHEPOBB* OKDEHBh, AKTDBGBB ABB EKJRBBB that the judgment appealed from be ana we. same hereby . is affirmed,• appellant to pay all costs as against appslles in both courts.

JBBBTJART 5 > 1923.

JDB9HBTO AJJlHMSB.  