Moore Steel, Inc. v. Succession of Wright
| Decision Date | 25 March 1955 |
| Docket Number | No. 3951,3951 |
| Citation | 79 So.2d 118 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | MOORE STEEL, Incorporated, v. SUCCESSION OF Richard WRIGHT et al. |
Cahn, Provensal & Faris, New Orleans, for appellant.
Christovich & Kearney, New Orleans, for appellees.
Moore Steel, Incorporated, brought this suit against the succession of Richard Wright, East Feliciana Parish School Board, E. B. Ludwig, Inc. and Maryland Casualty Company. The petition was amended to dismiss E. B. Ludwig, Inc., and to bring in E. B. Ludwig individually as a defendant. The suit was based on a materialman's lien for material allegedly used in the construction of a gymnasium at Jackson, Louisiana. The lower Court rendered judgment for defendants, and the petitioner has appealed.
The facts show that on May 14, 1951, the East Feliciana School Board entered into a contract wherein Richard W. Wright agreed to construct a gymnasium for the Jackson School. Maryland Casualty Company became surety on Richard Wright's bond. Shortly after the construction was commenced, Mr. Wright became ill and was forced to discontinue the project, and he subsequently died on July 1, 1951. No further work was done on the gymnasium until defendant E. B. Ludwig assumed the contract by written agreement with the administratrix of the succession of Richard Wright. The job was completed by Mr. Ludwig.
Petition alleges that it supplied certain materials which went into the construction of the gymnasium, and brought this suit to enforce its lien as a supplier of materials. The School Board has withheld certain funds due under the contract until final disposition of this suit.
The testimony shows that, at the time of the contract for the gymnasium, Mr. Wright was engaged in several construction projects in or around New Orleans. At times he worked as a subcontractor for Mr. Ludwig. On April 24, 1951, Wright ordered certain materials from petitioner and gave as a destination the Plymouth-Cordage job, which construction was going on in Jefferson Parish. On May 2, 1951, he ordered material destined for the Rheem Manufacturing job, also in Jefferson Parish. On May 25, 1951, Wright back ordered a certain lot of material originally intended for the Rheem Manufacturing job, and gave a destination of Jackson, Louisiana Gym. These orders were not delivered to the site of the gymnasium, but were picked up at petitioner's plant by one of Wright's trucks. The total of the orders mentioned above was in the sum of $805.50, the amount of the alleged lien.
The petitioner has failed to prove that the materials ordered by Wright were actually used in the construction of the gymnasium. Although one witness testified that he saw certain materials of the same nature on the job site, other testimony is to the effect that the materials used in the actual construction were of a different size from those ordered from petitioner. There is furthermore,...
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