Apex Sales Co. v. Abraham, 2726

• Decision Date: 05 July 1967
• Docket Number: No. 2726,2726
• Citation: 201 So.2d 184
• Parties: APEX SALES COMPANY, Inc. v. Wilson ABRAHAM, d/b/a Wilson Abraham Construction Company, American Mortgage Corporation, Aetna Casualty and Surety Company, Don Billings and Jack Farmer.
• Court: Court of Appeal of Louisiana — District of US

Page 184

201 So.2d 184

APEX SALES COMPANY, Inc. v. Wilson ABRAHAM, d/b/a Wilson Abraham Construction Company,

American Mortgage Corporation, Aetna Casualty and

Surety Company, Don Billings and Jack Farmer.

No. 2726.

Court of Appeal of Louisiana, Fourth Circuit.

July 5, 1967.

Landrieu, Calogero & Kronlage, Charles A. Kronlage, Jr., New Orleans, for plaintiff-appellee.

Seale, Smith & Baine, Edward C. Seghers, Baton Rouge, for defendants-appellants.

John R. Frenkel, New Orleans, for defendants-appellees.

Before McBRIDE, YARRUT and BARNETTE, JJ.

McBRIDE, Judge.

This suit by the furnisher of materials to a subcontractor was brought against the prime contractor, his surety and the subcontractor to whom the materials had been furnished, all in solido.

During 1963 defendant Abraham contracted in writing with the owner to erect the 'Penthouse Apartments' in the 3900 block of St. Charles Avenue in New Orleans, furnishing a bond in accordance with R.S. 9:4802, as amended. In 1964 Abraham, as prime contractor, entered into a subcontract, in writing, for the furnishing and installation of sheetrock and the performance of certain painting with Billings & Farmer, a partnership, as subcontractor. Plaintiff alleges that between November 9, 1964, and through February 7, 1965, it sold certain paint, painting material and supplies to the subcontractor, Billings & Farmer, which were used in the performance of its subcontract in the erection and construction of the aforementioned building, on which there is a balance due of $9346.77.

Abraham, Aetna Casualty and Surety Company, and Jack Farmer (one of the partners of Billings & Farmer) deny that the goods were sold and delivered by plaintiff to Billings & Farmer or were used in the erection and construction of the building. Neither the partnership of Billings & Farmer nor Don Billings (the other partner) made an appearance.

In a third-party demand Abraham and Aetna Casualty and Surety Company claimed of Billings & Farmer damages in the sum of $3300 allegedly due and accrued as the result of the inferior work of Billings & Farmer which led to Abraham being forced to terminate their services.

Jack Farmer, in his individual capacity, filed answer to the third-party demand, denying the allegations thereof; Jack Farmer, individually, then assumed the position of third-party plaintiff in reconvention alleging that Abraham and his surety were indebted unto him for the sum of $14,815.80, being the balance due on the subcontract price and prayed for judgment therefor. Farmer's allegations were denied by Abraham and the surety.

After a trial on the record as made up and the issues therein, there was judgment in favor of plaintiff and against Abraham Construction Company, Aetna Casualty and Surety Company, Don Billings and Jack Farmer, individually, and in solido, for $9346.77, plus 10% Attorney's fees as against Aetna Casualty and Surety Company; there was also judgment in favor of Jack Farmer and Don Billings, third-party defendants and plaintiffs and against Abraham and Aetna Casualty and Surety Company for $2369.03. From the judgment Abraham and Aetna Casualty and Surety Company have appealed.

Jack Farmer and Don Billings in their individual capacities have answered alleging that the appeal is frivolous, and they pray for damages against the appellants under C.C.P. art. 2164; plaintiff also answered the appeal to the same effect and prayed for damages against appellants pursuant to the provisions of the above mentioned article of the Code of Civil Procedure.

Although appellants in their answer to the suit denied the sale and delivery of the goods by plaintiff to Billings & Farmer, no contention on appeal has been made that the lower court was in error in finding that there was a sale and delivery as alleged by plaintiff. We have examined the record and we are convinced that plaintiff sold and delivered the goods to the partnership contractor and that they were used in the erection and construction of the building. In his reasons for judgment, the trial judge stated:

'* * * The proof in the case beyond peradventure of doubt, in the estimation of the Court, was that the materials furnished were either delivered to or delivered over the counter to Billings and Farmer, and that they were used in the job. There is no contradiction of this that is worthy of note.'

We heartily agree.

Counsel for appellants dedicated a great deal of their brief and oral argument to the proposition that the plaintiff had filed no valid lien or privilege on its claim and that, therefore, it is relegated to asserting its claim against Billings & Farmer, the subcontractor. It is also contended that the trial court erred in awarding 10% Attorney's fees to plaintiff as against Aetna Casualty and Surety Company.

There is no necessity for a furnisher of materials to file a lien against the building project as a prerequisite to recovery of a personal judgment against the contractor and his surety.

The personal liability of the contractor and surety is grounded on the provisions of R.S. 9:4803 and 9:4814, and as to the surety more particularly on the voluntary contractual obligations undertaken.

The surety bond, in part, provides:

'KNOW ALL MEN BY THESE PRESENTS: That WILSON P. ABRAHAM CONSTRUCTION COMPANY as Principal, hereinafter called Principal, and the AETNA CASUALTY AND SURETY COMPANY, as Surety, hereinafter called Surety, are held and firmly bound unto AMERICAN MORTGAGE CORPORATION, as Obligee, hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the amount of NINE HUNDRED THIRTY ONE THOUSAND, THREE HUNDRED AND NO/100 DOLLARS ($931,300.00) for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

'NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if the Principal shall promptly make payments to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the following conditions.'

The surety's liability is set forth in R.S. 9:4803, as amended, thusly:

'Subject to the limitation provided in R.S. 9:4814, where the owner has required the bond herein provided, the surety thereon shall be liable in solido with the contractor for all labor and materials used in the said work of improvements * * *.'

The remedy against the surety is set forth in the first paragraph of R.S. 9:4814, as follows:

'Except as provided in Subsection C of this Section nothing in this Subpart shall be so construed as to deprive any claimant of his right of action against the surety signing...