Louisiana Molasses Company, Limited v. Lesassier

• Decision Date: 01 June 1900
• Docket Number: 13,179
• Citation: 28 So. 217,52 La.Ann. 2070
• Court: Louisiana Supreme Court
• Parties: LOUISIANA MOLASSES COMPANY, LIMITED, v. LOUIS LESASSIER ET ALS

28 So. 217

52 La.Ann. 2070

LOUISIANA MOLASSES COMPANY, LIMITED, v. LOUIS LESASSIER ET ALS

No. 13,179

Supreme Court of Louisiana

June 1, 1900

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans -- Ellis, J.

Andrew H. Wilson, for Plaintiff, Appellee.

Purnell M. Milner, for Fidelity and Deposit Company of Maryland Surety, Defendant.

Dart &amp Kernan, for Brakenridge Lumber Company, Limited, and Joseph Sutton & Son, Defendants, Appellees.

William S. Parkerson, for R. A. VanCleave, Jr., Defendant and Appellee.

Bernard McCloskey, for Cole Manufacturing Company, LaPierre & Pory Manion & Co., A. Ledoux, Agent, Salmen Brick & Lumber Company, Limited, and William Hankins, Opponent.

OPINION

BREAUX, J.

Plaintiff pleaded as in a concurso to compel the parties concerned to appear in court and assert their claims and rights over a fund of twenty-six hundred and forty-two and 5-100 dollars, which it deposited in court. It is alleged, in substance, by it, that in 1896, by written contract, it entered into a contract with a contractor and builder to erect a five-story warehouse building for the price of thirteen thousand four hundred and forty-two dollars, to be paid on terms as stated in the contract; that the Fidelity and Deposit Company, of Maryland, became the surety of this contractor up to the amount before stated; that the contractor and plaintiff selected Louis A. Ganter, an architect, as superintendent and supervising architect of the works, and notice of the selection was duly given to the Surety Company; that payments were to be made to the contractor at the end of each month for all the work done during the month less twenty per cent., which was to be retained by it until the completion of the building; that the payments were to be made on the certificates of the superintendent of construction, Ganter; that the sum alleged, except the amount deposited as before stated, was all paid to the contractor, and a large portion was paid with the consent of the Fidelity Company, surety; that since the payment of this sum, attested accounts by workmen and material men were served on it for material supplied, amounting to a large sum, about six thousand dollars; that after service of these accounts it refused to make further payments; that it notified the defendant, the Surety Company, that the contractor was quite slow in performing his work; that on October 5th, 1896, plaintiff seeing that he would not complete it, gave him notice that if he did not carry out the contract, it would avail itself of its rights and that a copy of the notice was served on the Surety Company. He, the contractor, failed to finish the work and abandoned the building; that, again, in November, it called in vain upon these parties to finish the work; that it was then that plaintiff took charge of and completed the building according to specifications; that a part of the front wall was badly constructed by the contractor and had to be reconstructed in order to comply with the specifications.

Petitioner also alleges that after making payments as stated, it had a balance on hand which it did pay over to the depository of the court, as before mentioned, less the sum of twenty-five dollars reserved for costs; that it was necessary to form a concurso and bring in all interested parties in order to settle the right of each. The building contract, specifications, and the contract of the contractor with the Fidelity and Deposit Company are all in evidence containing the terms and conditions usually inserted in such contracts and the details usual in specifications. The material men who had recorded their claims were made parties by plaintiff. Five of these men had brought suit against the plaintiff alleging that plaintiff had made payments by anticipation which resulted in their injury. These suits are all consolidated en concurso, and are before us for decision. Those who had not sued appeared on the day of trial and were permitted to prove their claim.

The Fidelity and Deposit Company pleaded the general denial, and, also, specially averred that plaintiff had made an over estimate of the work performed each month, and had, in consequence, overpaid the contractor each month and the payment in anticipation had caused it to lose a considerable amount, sufficient for it to claim its release and discharge on its bond. The creditors made parties joined in the concurso issue with those opposing their interests and claimed the amounts due them. Defendant avers that after a large amount of costs had been incurred and it had proven that the tender of the before stated amount was insufficient, plaintiff deposited a further sum of twenty-three dollars, and, thereby, made a second tender.

The statement of facts shows that some time after having agreed upon a plan of the building, plaintiff entered into a contract with a builder to erect the five-story building in question in accordance with the drawings and specifications identified with the contract, i. e. the plans and specifications were prepared by the architect sometime prior to signing the contract with plaintiff. They were accepted by plaintiff and bids were received by plaintiff. A Mr. Ganter made a bid for the contract, but as it was not the most acceptable and that of Mr. LeSassier was, it was awarded to the latter, who is also an architect, and who signed the contract and bound himself to build the warehouse as contractor and builder. After his bid had been accepted, LeSassier released the Molasses Company from its promise to pay him for his plans and specifications, and, with the consent of LeSassier, and after notice to the Surety Company, Ganter was employed by plaintiff as his superintendent and supervisory architect. The Surety Company knew about the time that Ganter was employed, that he had been employed.

The builder bound himself to furnish all the labor, tools, and materials of every description and to deliver the work complete, free from all liens for labor and materials, on the fifteenth day of September, 1896. Payments were to be made monthly, for all work done in one month. Payment was to be made at the end of each month, in amount twenty per cent. less than the value of the work done during that month. The twenty per cent. deduction was to be retained until the building was completed. The plan or specifications are, to some extent, defective, unless the defect be supplied by the following, copied from the specifications: "Iron Work -- Furnish and erect in place all iron work required to finish the building, as follows, viz. Cast iron and all the ordinary cast iron plates, well plates, capitals, etc., as per detail. Wrought Iron -- All wrought iron work in connection with carpenter's work, such as joint bolts, anchor iron for floor guards and door frames, tie bolts, etc., as per detail. In addition to what is specified above, all iron of any description necessary for the proper construction of the building shall be furnished by the contractor without extra expense to the company". It is contended by the Surety Company that the specifications provided for the construction of the arches, under the head of brick work, and that it did not contain anything about iron lintels or anything of the sort. The contract also contained a stipulation that if the builder failed to comply with its terms then plaintiff was to have the right to put an end to the contract and complete the work at the expense of the builder without being liable or accountable for the manner whereby plaintiff completed the work.

The builder furnished a bond in favor of plaintiffs, signed by the Fidelity and Deposit Company, in accordance with the terms of the Statute 180 of 1894, in which the latter bound itself, if the plaintiff failed to carry out the agreement between plaintiff and builder, to pay all amounts necessary to complete the building as agreed upon, provided plaintiff notified it of any act of the builder "which may involve a loss". About the end of the third month's work on the building, the builder progressed quite slowly with it. Not long after there appeared fissures or cracks in the front wall. The builder had abandoned the work and the Surety Company was notified. Another architect was called upon, who drew plans and specifications under which the arches near where there were cracks, were reinforced, and the defects which had caused the fissures in this wall were remedied, and the opening or cracks closed and the building completed. The architect employed to see to the completion of the work says that the cracks were caused by the weight coming down too heavily at a place over the arches; that he had the arches taken down on the first floor and that three rows of sill beams were laid sufficiently strong to carry the weight of the floors and brick tiers. Prior to this there were no beams over the arches, only brick work, though it appears iron lintels were necessary. We are informed that originally the floor beams over the arches ran directly into the wall over the opening.

And that the change in the construction of the arches was necessary.

It is averred by the Surety Company that the building was constructed according to the plan and specifications, and that the Surety Company is not responsible for the defects therein, as it bound itself only to see that the builder would complete the building according to the plan and specifications. The Surety Company also complains of anticipated payments made to the builder, also of over estimates whereby the contractor received a larger amount than he should have received at the end of each month; that he was only entitled at the end of each month to amounts earned during that month. It is a fact that in this case there was paid nine...