Allen B. Cambre Lumber & Supply Co. v. Loomis

• Citation: 94 So.2d 908
• Decision Date: 13 May 1957
• Docket Number: No. 20891,20891
• Parties: ALLEN B. CAMBRE LUMBER AND SUPPLY COMPANY, Inc. v. Dr. Lyon K. LOOMIS.
• Court: Court of Appeal of Louisiana — District of US

Page 908

94 So.2d 908

ALLEN B. CAMBRE LUMBER AND SUPPLY COMPANY, Inc. v. Dr. Lyon K. LOOMIS.

No. 20891.

Court of Appeal of Louisiana, Orleans.

May 13, 1957.

Grady C. Durham, New Orleans, for defendant appellant.

Ernest J. Robin, New Orleans, for plaintiff appellee.

REGAN, Judge.

Plaintiff, Allen B. Cambre Lumber and Supply Company, Inc., a materialman, instituted this suit against Dr. Lyon K. Loomis, the owner of property designated by the municipal No. 116 S. Jefferson Davis Parkway, endeavoring to have its lien and privilege recognized against the above property and to recover a personal judgment for the sum of $365.85, representing the cost of building materials sold and delivered to the foregoing address and used therein by the defendant's contractor, Frank X. Lagasse, who had been employed to remodel and repair the property.

Defendant answered and admitted that he had entered into an oral contract with Lagasse to repair and remodel the property, but insisted that while Lagasse may have obtained the materials from the plaintiff they were not delivered to the premises nor used by him in the repair or remodelling thereof.

From a judgment in favor of plaintiff in the amount of $252.76 defendant has prosecuted this appeal. Plaintiff has answered the appeal requesting that the judgment be increased to the sum of $365.85, the amount initially prayed for.

The facts are relatively simple. Defendant orally employed Lagasse to repair and remodel the premises designated as 116 S. Jefferson Davis Parkway. The contract was not recorded and no bond was given by the contractor to protect the materialman. Plaintiff's president, allen B. Cambre, testified that all of the lumber and other materials were loaded on its trucks, billed to the job and delivered to 116 S. Jefferson Davis Parkway, which property was owned by the defendant; that signed dray receipts were secured from the contractor for each of the six deliveries with the exception of two thereof¹ and these receipts reflected by virtue of a notation made thereon by the operator of the truck, that the materials were placed in the yard or garage adjacent to the premises.

The contractor testified unequivocally that all of the materials herein sued upon were actually delivered to the job site and were actually used by him in the repairing and remodeling of defendant's building, including the materials represented by the unsigned dray receipts. He testified that these materials were delivered to the job site during his absence and some one on the premises instructed that they be placed in the yard or garage.

The defendant offered no pertinent evidence other than his own testimony to dispute the fact that the materials were delivered to and used in the repair and remodeling of his premises.

Defendant contends that the plaintiff has not sufficiently proved that the materials were delivered to and used by the contractor in the repair and remodeling of his premises.

Plaintiff, on the other hand, contends that he was not only proved delivery to the premises, but that the materials were actually used in the repair thereof.

We have carefully evaluated all of the evidence appearing in the record and are convinced that the contractor ordered the materials and the plaintiff furnished...