DeFrances Marble & Tile Co. v. Coxe

Decision Date09 November 1962
Docket NumberNo. 5649,5649
Citation148 So.2d 83
PartiesDeFRANCES MARBLE AND TILE COMPANY v. John Marshall COXE et al.
CourtCourt of Appeal of Louisiana — District of US

Cole, Mengis & Fazio by Warren L. Mengis, Breazeale, Sachse & Wilson by H. P. Breazeale, Jr., Baton Rouge, for appellant.

Drury, Lozes & Dodge by James H. Drury, New Orleans, for appellees.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

HERGET, Judge.

Plaintiff, DeFrances Marble and Tile Company, instituted suit against John Marshall Coxe, a building contractor; John David, Incorporated, the record title owner of a shopping center constructed by said contractor; Employers Liability Assurance Corporation, Ltd., the surety on a bond given by the contractor in accordance with LSA-R.S. 9:4801 et seq.; Connecticut Mutual Life Insurance Company and Edward M. Heller, holders of promissory notes secured by first and second mortgages on the shopping center. Plaintiff seeks judgment in its favor against John M. Coxe, John David, Incorporated and Employers Liability Assurance Corporation, in solido, in the sum of $24,222.59, with 5% Interest thereon from May 1, 1959 until paid and the further sum of $24 representing the cost of recording a lien, together with all costs of court. In addition thereto, Plaintiff prayed that its privilege upon the land and improvements described in the petition be recognized and that it be paid the sum sued for out of the proceeds of the sale of said property in preference and priority over all other creditors of said Defendants, particularly but not exclusively the Connecticut Mutual Life Insurance Company and Edward M. Heller. John Marshall Coxe and John David, Incorporated answered, making a general denial and further setting forth the contract was duly accepted after the completion of the work and prayed that the suit of Plaintiff be dismissed at its costs. Employers Liability Assurance Corporation, Ltd., answered admitting the execution of the surety bond, denying it was indebted unto the Plaintiff in any amount whatsoever, and prayed for a dismissal of Plaintiff's suit as to it, and, in addition, filed exceptions of no right and no cause of action and a plea of prescription. Connecticut Mutual Life Insurance Company and Paul Odom, allegedly successor in interest of Edward M. Heller--the said Odom having purchased the note from Heller--answered, averring they were the holders and owners of the first and second mortgages on the property and prayed that the suit of Plaintiff be dismissed as to said appearers and that judgment be rendered recognizing respondents as the first and second mortgagees on the real estate involved. In addition, said Respondents filed a plea of prescription in this Court.

For oral reasons assigned the trial Court rendered judgment sustaining the exceptions of no right or cause of action and maintaining the plea of prescription filed by Employers Liability Assurance Corporation, Ltd., dismissing Plaintiff's suit at its costs as to said Defendant. The Court further ordered there be judgment in favor of DeFrances Marble and Tile Company and against John Marshall Coxe and John David, Incorporated, in solido, in the sum of $24,222.59 with 5% Per annum interest from May 1, 1959 until paid and for the additional sum of $24, with recognition of Plaintiff's lien and privilege upon the land and improvements described in the petition; ordering the sale of the property and decreeing that Plaintiff be paid out of the proceeds thereof by preference and priority over all other creditors of said Defendants, particularly but not exclusively the Connecticut Life Insurance Company and Edward M. Heller. From this judgment DeFrances Marble and Tile Company devolutively appealed to this Court, as did Connecticut Mutual Life Insurance Company and Paul Odom.

The evidence reveals John M. Coxe, representing himself to be the owner of the land on which the building was erected, contracted with Plaintiff by verbal contract to furnish and install Acoustiglas, Asphalt tile, Vinyl Asbestos tile, wall covering and other tile work itemized on the account annexed to the petition for $26,297.59, of which sum there was paid $2,075 leaving a balance due and owing of $24,222.59. At the time of these negotiations with Plaintiff, Coxe was the owner of the land. Subsequently, without the knowledge of Plaintiff and in compliance with a request from the lending agency which was to furnish interim financing for the project, Mr. Coxe formed a family corporation, John David, Incorporated, transferring title to the land to said corporation and entered into a building contract with it for the construction of a shopping center. Defendant, Employers Liability Assurance Corporation, Ltd. executed a surety bond guaranteeing the faithful performance of the contract by the contractor, John M. Coxe, not on a printed form but individually prepared on a typewriter. Plaintiff alleged under his subcontract work was begun on May 2, 1958 and continued through March 31, 1959; that the contract for the improvements on the property between Coxe, contractor, and John David, Inc., the owner, was recorded in the office of the Clerk and Recorder in the Parish of Livingston on February 6, 1958; that despite the fact its work was not completed until March 31, 1959 an acceptance of the contract undertaken by the contractor was filed by John David, Inc. on September 6, 1958 in the Parish of Livingston in Mortgage Book 45, page 554; that it filed a lien for the work it did under the contract against John M. Coxe, as owner, recorded May 14, 1959 and filed a supplemental and amended lien affidavit which joined John David, Inc., recorded in the records of the Parish of Livingston in Mortgage Book 48, page 13 on June 10, 1959. Plaintiff avers further that the owner's acceptance of the building referred to was null and void for the reason the contract had not been completed and the acceptance by defendant John David, Inc. was filed to defraud and deceive the laborers, materialmen and subcontractors who had performed work on the improvements on the property or had furnished materials for use therein and such acceptance was filed prior to the completion of work on the building with full knowledge of defendants John David, Inc., John Marshall Coxe and Employers Liability Assurance Corporation, Ltd. However, it was stipulated on the trial of the case that Plaintiff in no way charged Employers with any fraud in connection with the acceptance. Though the proceedings were not made part of this record, subsequent to the institution of this suit Mr. H. Paul Odom, who had purchased the note from Mr. Heller secured by mortgage on the commercial development involved herein, instituted foreclosure proceedings when the maker defaulted in his payments. When the foreclosure sale took place he secured a mortgage certificate from the mortgage office of the Clerk of Court in Livingston Parish, which certificate revealed the judgment of DeFrances primed both the mortgage foreclosed on and the mortgage of Connecticut Mutual Life Insurance Company. The Sheriff of the Parish of Livingston would not issue the Sheriff's Deed in connection with the foreclosure sale to the purchaser, Mr. Odom, the successful bidder at the Sheriff's sale, until the purchaser paid the Sheriff sufficient funds required by law to pay costs, commissions, and judgments which primed the mortgage foreclosed on.

Counsel for DeFrances contend because the lien which formed the basis for this lawsuit has been paid and canceled the issues raised by the appeals from the judgment are now moot. Though in this contention counsel for Employers concur, we are not in agreement therewith. As noted, the appeals were taken from a judgment recognizing the claim of Plaintiff as to certain defendants; rejecting same as to Employers; and further recognizing the claim of Plaintiff primed those of defendant mortgage holders, Odom and Connecticut. The devolutive appeals by Connecticut Odom were timely...

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10 cases
  • E. L. Burns Co., Inc. v. Cashio, 54539
    • United States
    • Louisiana Supreme Court
    • 28 de outubro de 1974
    ... ... DeFrances Marble and Tile Co. v. Coxe, 148 So.2d 83 (La.App.1st Cir. 1962), ... ...
  • National Am. Bank of New Orleans v. Southcoast Contractors, Inc., 9254
    • United States
    • Court of Appeal of Louisiana — District of US
    • 19 de março de 1973
    ... ... See Jimco, Inc. supra; De Frances Marble & Tile Co. v. Coxe, 148 So.2d 83 (La.App.1st Cir. 1962), cert. den. 1963; ... ...
  • Bowles & Edens Co. v. H & H Sewer Systems, Inc.
    • United States
    • Court of Appeal of Louisiana — District of US
    • 24 de novembro de 1975
    ... ... This distinction was recognized in the DeFrances case. Since this is a mandatory statutory bond its provisions can not be ... in a conventional bond in the DeFrances case (DeFrances Marble and Tile Co. v. Coxe, 148 So.2d 83 (La.App.1962))' ...         In ... ...
  • Patent Scaffolding Co. v. Ross Corp.
    • United States
    • Court of Appeal of Louisiana — District of US
    • 8 de fevereiro de 1965
    ... ...         The argument of plaintiff is predicated on DeFrances Marble and Tile Company v. Coxe, 148 So.2d 83 (La.App.1962) cert. denied, ... ...
  • Request a trial to view additional results

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