Fruge v. Muffoletto

• Decision Date: 15 January 1962
• Docket Number: No. 45834,45834
• Citation: 137 So.2d 336,242 La. 569
• Parties: Cedric FRUGE v. Francis S. MUFFOLETTO.
• Court: Louisiana Supreme Court

Page 336

137 So.2d 336

242 La. 569

Cedric FRUGE v. Francis S. MUFFOLETTO.

No. 45834.

Supreme Court of Louisiana.

Jan. 15, 1962.

Rehearing Denied Feb. 19, 1962.

Guillory & Guillory, by Isom J. Guillory, Jr., Eunice, for plaintiff-appellant.

Jacque B. Pucheu, Eunice, Sandoz & Sandoz, Opelousas, for defendant-appellee.

FOURNET, Chief Justice.

This suit by plaintiff Cedric Fruge, for a personal judgment against defendant, Francis S. Muffoletto, with recognition of a labor and material privilege against defendant's property, is pending on appeal to the Court of Appeal, Third Circuit, from the District Court's judgment dismissing the suit on an exception of no cause of action filed by defendant, and is here on questions of law certified to this Court by the Court of Appeal pursuant to constitutional and statutory provisions. ¹

The factual recitation on which the questions are based is that

'This is a suit by a building contractor seeking recognition of a lien in the amount of $4,160.88 for labor and material furnished in the reconstruction and renovation of business premises located on property owned by the defendant. The substantial repairs were made at the order of a tenant to whom the property had been leased.

'The business premises had been leased for the purpose of operating a 'drive-in' restaurant. By agreement both written and oral between the owner-lessor (defendant herein) and this tenant, the latter was authorized to undertake at his own expense the needed reconstruction to make the premises suitable for the purpose for which leased. The owner had personal knowledge that the reconstruction project was being undertaken and was personally present during the course of the reconstruction, and he had accompanied the tenant to the plaintiff-contractor's office when the plaintiff furnished the tenant an estimate of the cost of the repairs; but the owner did not enter into any of the negotiations between the tenant and the contractor, nor did he indicate any personal responsibility for the cost of the repairs (nor, in fact, did he even know the estimated cost of the repairs). The tenant has since filed a petition in bankruptcy, and (we are informed) the lease between him and the defendant-owner has been terminated.'

Following are the questions of law on which instruction is sought:

'1. When repairs and improvements are made by a tenant upon leased premises, and the owner has given the tenant permission to make such improvements, is the contractor entitled under R.S. 9:4801 to a lien for the labor and materials used on the premises?' ²

'2. That is, under such circumstances is the work performed 'with the consent * * * of the owner' or 'at the request of his authorized agent or representative' so as to entitle the contractor to a statutory lien under R.S. 9:4801?'

'3. Or, instead, does R.S. 9:4811 provide the sole statutory authority for a contractor's construction lien when the contracting party who orders the work is 'other than the owner,' in such case conferring a lien only upon the leasehold rights of the tenant who ordered the work, whether or not the landlord-owner consented to the tenant's contracting for improvement of the property at the tenant's expense?' ³

The contractor-plaintiff, relying on decisions from the Courts of Appeal for the First Circuit and for Orleans (as then constituted) for the proposition that Section 1 applies when the owner consents, and Section 11 when the owner does not consent or have knowledge of the improvements, ⁴ and professing inability to reconcile certain decisions of the Court of Appeal, Second Circuit, involving the same Sections but said to reach a different result, contends that the action of a lessee or tenant in causing to be made renovations or improvements to the property of the landlord makes the said property subject to the privilege provided by R.S. 9:4801, when such repairs or renovations are done 'with the consent * * * of the owner' of the property, and that the remedy provided by R.S. 9:4811 is simply an additional right given the contractor--one which does not in any way detract from the rights given him by Section 4801. The owner-defendant, on the other hand, emphasizing facts of the instant case favorable to him, ⁵ and citing cases from the Second Circuit Court of Appeal, ⁶ denies that R.S. 9:4801 has any application, and submits that by provisions not alone of R.S. 9:4811 but also of Article 3249 of the Civil Code, the privileges exist only against the lease. ⁷

In construing a statute, the primary object is to ascertain and, if possible, give effect to the intention and purpose of the legislature as expressed in the statute. Since the meaning is to be determined from a general consideration of the act as a whole, all parts, provisions or sections must be read together; each must be considered with respect to, or in the light of, all the other provisions, and construed in harmony with the whole. The intent as deduced from the whole will prevail over that of a particular part considered separately; meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another; so, in determining the meaning of a word, phrase or clause, the entire statute is to be considered. ⁸ This Court observed in a previous case concerning the instant statute: '* * * we think * * * when read as a whole, those sections throwing any light on other sections being correlated, the act is more comprehensive and is capable of a construction clearly within the intendment of the lawmakers that leads to no absurd consequences, without violence being done to the rule of interpretation that acts in derogation of common rights must be strictly construed.' Glassell, Taylor & Robinson v. John W. Harris Assoc., 209 La. 957, 969, 26 So.2d 1, 5.

A careful reading of Act 298 of 1926 enables a clearer understanding of the overall purpose of the subject statute; that Act, relative to the creation of privileges in connection with work on immovable property, replaced earlier legislation on the subject and formed the basic law which, with minor amendments, was incorporated in the Revised Statutes of 1950 as R.S. 9:4801--17. It created, in favor of listed persons who performed work, furnished material or machinery for construction, repair or improvements of immovable property 'with the consent or at the request of the owner thereof, or his authorized agent or representative,' a privilege for the payment of their claims which was declared to be superior to other claims against the land and improvements (Section 1); required that building contracts be written and recorded, prescribed the method of preserving the privilege created by the statute, and imposed upon the owner the obligation of exacting a bond from the contractor, to be attached to and recorded with the contract, conditioned on the faithful performance thereof and the payment of all claimants, as their interest may appear (Section 2); declared the contractor and his surety to be solidarily liable for all labor and materials used in the work (Section 3); prescribed the method of procedure whereby the owner who has exacted bond from the contractor may obtain the release of his property from the privileges arising out of the contract (Sections 4 and 5); decreed the liability of the owner in the event of his failure to obtain a sufficient or an effective bond (Section 6); provided full recourse against the surety to the amount of the bond in event of the owner's failure to record the contract and bond, or failure to obtain a sufficient bond (Section 7); authorized that a building contract provide for partial payments as the work progressed (Section 8); dealt with the rank of the privileges and their pro rata payment in event of necessity (Section 9); treated of concursus proceedings, attorney's fees and court costs (Section 10); provided that where the person for whom the work was done or the improvements made, or with whom the contract was made, was not the owner of the land upon which the work was located, 'then he shall be subject to all the obligations that are made incumbent on the owner by this act, and the liens and privileges * * * shall operate upon whatever right said person having the work done or doing the work may have to the use of the land as lessee; and said lien and privilege shall operate against the lease such person holds, if there is one * * *' (Section 11); decreed the personal liability of the landowner, as well as the subjection of the immovable to a 'lien and privilege,' if no contract is recorded or if the owner fails to take other action prescribed by the statute (Section 12); created a privilege in favor of architects and engineers for the payment of their contract charges (Section 13); dealt with the remedies against the surety (Section 14), the fees for recording (Section 15), and declared that the manner and method of creating and preserving the privileges specified therein was exclusive (Section 16). For the purposes of this decision, the law today as set forth in R.S. 9:4801--17 is substantially as stated above.

Applying the rules of construction previously alluded to, we find that the object of the legislation is, first, to protect the claims of all persons who, for the account of the owner, contribute their labor, skills, materials, equipment, or furnish machinery in connection with the erection, construction, repair or improvement of immovable property, by creating...