Graeme Spring & Brake Service, Inc. v. De Felice

• Decision Date: 15 April 1957
• Docket Number: No. 20838,20838
• Citation: 98 So.2d 314
• Parties: GRAEME SPRING & BRAKE SERVICE, Inc. v. Lloyd M. DE FELICE.
• Court: Court of Appeal of Louisiana — District of US

Page 314

98 So.2d 314

GRAEME SPRING & BRAKE SERVICE, Inc. v. Lloyd M. DE FELICE.

No. 20838.

Court of Appeal of Louisiana, Orleans.

April 15, 1957.

On Rehearing Nov. 18, 1957.

Terriberry, Young, Rault & Carroll and Rufus C. Harris, Jr., New Orleans, for defendant and appellant.

Carol B. Hart, New Orleans, for plaintiff and appellee.

McBRIDE, Judge.

The principal question in this controversy is whether plaintiff has a lien and privilege upon a certain tugboat owned by defendant.

Defendant entered into a contract with C. & B. Steel Boat Construction Co., Inc., for the construction of the steel tug 'Denise DeFelice' for the price and sum of approximately $60,000. During the course of the work plaintiff, Graeme Spring & Brake Service, Inc., furnished certain materials and also the labor to install the same in the vessel. The materials were furnished and the work was performed on the order of C. & B. Steel Boat Construction Co., Inc., which was billed therefor by plaintiff on open account. The defendant, DeFelice, had nothing whatever to do with the said transaction.

The vessel, when completed, was delivered unto defendant who paid C. & B. Steel Boat Construction Co., Inc., the full balance due on the contract price. The contract stipulated for progressive payments.

Subsequently, the C. & B. Steel Boat Construction Co., Inc., filed voluntary proceedings in bankruptcy in the Federal District Court at New Orleans and the instant suit ensued.

Plaintiff claims defendant is personally indebted unto it for $1,083.59, the amount of the aforesaid materials and labor furnished on the order of C. & B. Steel Boat Construction Co., Inc. Plaintiff also alleges it has, under the provisions of LSA-R.S. 9:4502, as amended, a lien and privilege on the 'Denise DeFelice' to said amount.

DeFelice denies any indebtedness whatsoever unto plaintiff; he alleges the vessel was built under his contract with C. & B. Steel Boat Construction Co., Inc.; that the vessel has been delivered to him by the contractor and that he has fully paid the price thereof. He assumes the position of plaintiff in reconvention and claims of plaintiff as damages the amount of his attorneys' fees. He also prays for a judgment declaring the lien null and void and the lien inscription cancelled.

After a trial on the merits of the case, the court below held plaintiff had a lien and privilege on the vessel arising under LSA--R.S. 9:4502, as amended, and judgment was rendered not only recognizing the asserted lien and privilege but also condemning defendant in personam to pay plaintiff's bill in the aforementioned amount. Defendant has appealed.

Within ninety days from the last day on which the materials were furnished and the labor performed, plaintiff filed an affidavit of lien in the mortgage records of Jefferson Parish against the vessel for the amount of its bill. This suit was also filed within said period.

The recordation of the affidavit upon the mortgage records produces no legal effect. The inscription did not create a lien if none existed by statute, nor did it serve to preserve the lien if the law establishes one in favor of plaintiff. Section 19, art. 19, Constitution of 1921, LSA-Const., provides that privileges on movable property shall exist without registration except in such cases as may be prescribed by law. See, also, Inter City Express Lines, Inc., v. Guarisco, La.App., 165 So. 727. LSA-R.S. 9:4502, as amended, under which plaintiff claims his lien arises, makes no requirement for the registry of a lien and privilege asserted under the said section.

Plaintiff's counsel argues that the same principles of law that relate to building contracts in general apply with reference to the construction of water craft, and contends that the owner may be held personally liable for the claims of persons performing labor for or furnishing materials to the contractor. The provisions of the Building Contract Statute are stricti juris and do not apply in this instance, hence there is no necessity to discuss the matter further. We are unaware of any statutory law or jurisprudence in Louisiana to the effect that the owner of the vessel would be liable in personam for the amount due for labor and materials furnished by a third person to the shipbuilder.

The first and pertinent paragraph of LSA-R.S. 9:4502, as it was amended by Act 427 of 1952, reads:

'Any person engaged in the making or repairing of movable goods, furniture, upholstery, commodities, equipment, merchandise, machinery, or movable objects or movable property of any type or description, has a privilege on the thing for the debt due him for materials furnished or labor performed. This privilege is effective for a period of ninety days from the last day on which materials were furnished or labor and performed, if the thing affected by such privilege is removed from the place of business where such labor was performed or materials furnished; provided that if the thing affected by such privilege remains in the place of business of the person who furnished such materials or performed such labor, such privilege continues as long as such thing remains in such place of business.'

Thus, that statute purports to grant unto any person engaged in the making or repairing of movable property of any type or description of lien and privilege on the thing for the debt due him for materials furnished or labor performed. The word 'making' as it appears in the statute is synonymous with the word 'manufacturing' and means the production of a new article out of raw materials or generally the giving of new shapes, new qualities or new combinations to matter which has already gone through some other artificial process. See State v. Southern Cotton Oil Co., 164 La. 225, 113 So. 825; Commonwealth v. Peerless Paper Specialty, Inc., 344 Pa. 283, 25 A.2d 323. Plaintiff was not 'engaged in making' the vessel within contemplation of the statute and its only part in the construction thereof was to furnish, upon the contractor's order, a small portion of the materials used and the incidental labor necessary for the installation of those materials. These were supplied to C. & B. Steel Boat Construction Company, Inc., which was engaged in making the boat under the contract with defendant.

Nor was plaintiff engaged in repairing the vessel. The word 'repair' is defined by Webster: 'To restore to a sound or good state after decay, injury, etc.' The Second Circuit Court of Appeal in Thompson Chevrolet Co. v. Blanchard, 15 La.App. 254, 131 So. 630, held that 'repair,' when used as a verb, means to restore to a solid or good state after decay, injury, dilapidation, or partial destruction. The word contemplates an existing structure or thing which has become imperfect, and means to supply in the original existing structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be. Fuche v. City of Cedar Rapids, 158 Iowa 392, 139 N.W. 903, 44 L.R.A., N.S., 590. It has been held that one making installation of a sprinkling system in a building is not engaged in 'repairing.' Grady v. National Conduit & Cable Co., 153 App.Div. 401, 138 N.Y.S. 549.

It appears perfectly plain to us that plaintiff who was not engaged in 'making' or 'repairing' the tug but who merely furnished and installed some of the materials used in the work, has no privilege on the vessel for a debt due by the contractor. The statute, unlike those provisions of the law which grant privileges on immovables for labor and materials, does not accord a third person who furnishes labor or materials for the making of movable property a privilege thereon for the amount owed him. If the Legislature ever intended that such person were to be protected by a privilege on the movable, it would have said so. No mention was made of such lien in Act No. 341 of 1946, which was incorporated in the LSA-Revised Statutes of 1950 under 9:4502, nor was anything said regarding such a lien in Act No. 427 of 1952 which amended LSA-R.S. 9:4502.

Were it to be held that a third person situated as was plaintiff is entitled to a privilege for material and labor charges would be to expose the person for whom the movable object was manufactured to liability for all manner of hidden liens, and the only means he could employ to shield himself would be to ascertain before accepting delivery of the property that the bll of each and every laborer and materialman had been satisfied by the manufacturer. This would be an enormous burden which the Legislature certainly could never have contemplated.

To recognize that plaintiff has a lien and privilege would require that the operation of the statute be extended to a situation not clearly intended. This should not be done. Willis v. Mills Tooke Properties, Inc., La.App., 42 So.2d 548.

Statutes conferring privileges are in derogation of common right and hence must be strictly construed by the courts, as secret liens hamper commerce and are in disfavor. Loeb v. Collier, 131 La. 377, 59 So. 816. Such statutes may not be extended by implication or analogy, as privileges can be claimed only when expressly granted by the law. American-LaFrance & Foamite Industries, Inc., v. Town of Winnfield, 184 La. 1043, 168 So. 293; American Creosote Works, Inc., v. City of Natchitoches, 182 La. 641, 162 So. 206; State v. C. S. Jackson & Co., 137 La. 931, 69 So. 751; Labouisse v. Orleans Cotton Rope and Manufacturing Company, 43 La.Ann. 245, 9 So. 204; City of Natchitoches v. Kile, La.App., 54 So.2d 834; Phillips v. Conley, La.App., 46 So.2d 650; Willis v. Mills Tooke Properties, Inc., supra; Kvaternick v. Knouse, La.App., 16 So.2d 74. This is particularly so with reference to a privilege claimed on property belonging to one who is not liable for the obligation. Boone v. Brown, 201 La. 917, 10 So.2d 701. The doubt, if any, is to be resolved against the person claiming the privilege. Shreveport...