Ketteringham v. Eureka Homestead Soc.

• Decision Date: 30 October 1916
• Docket Number: 22055
• Court: Louisiana Supreme Court
• Parties: KETTERINGHAM v. EUREKA HOMESTEAD SOC. et al. In re SALZER

72 So. 916

140 La. 176

KETTERINGHAM v. EUREKA HOMESTEAD SOC. et al.

In re SALZER

No. 22055

Supreme Court of Louisiana

October 30, 1916

Oscar Schreiber, of New Orleans, for appellant.

Charlton R. Beattie, of New Orleans, for respondent.

OPINION

PROVOSTY, J.

The plaintiff, Ketteringham, contracted to construct a building for one of the defendants, the Eureka Homestead Society. After the contract had been recorded and bond given in accordance with Act 221, p. 418, of 1914, 'the parties' agreed orally to substitute a hot-water heating system to the hot-air heating system called for by the contract; the additional cost to be added to the price of the contract.

For the installation of this hot-water system the plaintiff Ketteringham, contracted with one Edwin Salzer, who did the work, and was paid in full, but failed to pay for the materials that went into it.

His brother, Alfred Salzer, one of the defendants, paid the debt and obtained from the furnisher of the materials a written subrogation, and recorded the claim, as required of furnishers of materials by said Act 221 of 1914. He did not however, 'file a sworn statement thereof with the owner,' as required by said act.

The defendant the Eureka Homestead Society paid the plaintiff Ketteringham, all that was due for the building, except an amount sufficient to satisfy the claim thus recorded, which, in obedience to said Act 221 of 1914, it retained; and the plaintiff, Ketteringham, brought this suit against Alfred Salzer, said society, and the recorder of mortgages, to have said recordation canceled and said amount paid to him.

He contends that said debt does not come within the purview of said Act 221 of 1914, for the reason that the only debts said act has reference to are those incurred by the main contractor, not those incurred by a subcontractor, and for the further reason that, at all events, the only debts it has reference to are those incurred for carrying out the contract that is required by it to be reduced to writing and recorded and bond to be given for, not to a debt incurred, as in this case, for carrying out some other contract subsequently entered into, or, in other words, for doing work not called for by the recorded contract, but outside of it, as in the present case. He also contends that the subrogation to Alfred Salzer was only of the personal claim against Edwin Salzer, not of the rights of privilege, etc., if any there were, accessory to said claim; and he contends, finally, that no sworn statement of said claim was 'filed with the owner' of the building as said Act 221 of 1914 requires in order that a claim should be entitled to the benefit of its provisions.

Both the district court and the Court of Appeal decided in favor of plaintiff, holding that, in the words of the syllabus of the decision of the Court of Appeal:

'Act 221 of 1914 is not as broad as Act 180 of 1894, and grants a privilege only to those having claims against the undertaker; those having claims only against subcontractors are granted no privilege by that act.'

It is very evident, from a mere reading of the statute, which we give in the margin, ^[1] that the only debts it has reference to are such as have been contracted in the execution of the contract, which it requires to be reduced to writing and recorded. If, therefore, the debt in question in the present case was not of that character, the statute has no application, and Alfred Salzer has no case, and the other contentions, as to the proper interpretation of the statute, and as to whether its requirements have been complied with, do not arise in the case, and do not have to be considered. Whether this debt was contracted in execution of the contract that was recorded is therefore the first question to be considered in logical order.

We think it was. 'The parties' (by which we necessarily understand all the necessary parties, namely: the contractor, the owner and the surety on the bond) agreed that this hot-water system should be substituted to the hot-air system called for by the contract. Thereby they did not intend to and did not, in fact, make a new, separate, and independent contract, but intended to and did amend the existing contract in this particular. They intended that the existing contract should stand as thus amended, and should, as thus amended, be the one and only contract for the construction of the building. How far this same view might be taken in a case where the change in the contract was so important as to constitute a new and independent contract, or in a case where the right of third parties might be concerned, we will not stop here to inquire. Suffice it to say, that it does not, under the circumstances of this case, lie in the mouth of either the owner, the contractor, or the surety to contend that this change which they made in the one and only contract which they caused to be recorded for the construction of the building was a separate and independent contract, forming no part of the contract for the construction of the building.

On the point, however, of whether said Act 221 of 1914 has reference only to the debts of the main contractor, and not also to those of the subcontractor, we have to agree with the two lower courts, and overrule Brink v. Bartlett, 105 La. 336, 29 So. 958, interpreting Act 180 of 1894, if at all in conflict, which is far from clear. For we have to take this Act 221 of 1914 as it is written, not as it might perhaps have been intended to be written, or as Act 262 of 1916, amending it, is written. The latter act reads:

'Every person having a claim against the undertaker, contractor, subcontractor, master mechanic or engineer shall, after the date of the completion of the said work file sworn statement thereof with the owner,' etc.

Whereas said Act 221 of 1914 reads:

'Every person having a claim against the undertaker, contractor, master mechanic or engineer shall,' etc.

-- leaving out the word 'subcontractor.'

Throughout the act the words 'undertaker, contractor, master mechanic, or engineer' are grouped as we here find them, and are manifestly intended to designate the main contractor and no one else. If confirmation of this were needed, it would be found in the following extract from the brief of Alfred Salzer's learned counsel in this case:

'Your honors will also notice that the four designators of the main contractor, to wit, undertaker,...