Patterson v. Lumberman's Supply Co., Inc.

• Citation: 167 So. 471
• Decision Date: 30 April 1936
• Docket Number: 5204
• Parties: PATTERSON v. LUMBERMAN'S SUPPLY CO., Inc
• Court: Court of Appeal of Louisiana — District of US

167 So. 471

PATTERSON v. LUMBERMAN'S SUPPLY CO., Inc

No. 5204

Court of Appeal of Louisiana, Second Circuit.

April 30, 1936

Rehearing denied June 2, 1936.

H. D Montgomery, of Monroe, for appellant.

Madison Madison & Fuller, of Bastrop, for appellee.

OPINION

TALIAFERRO Judge.

This suit was instituted by plaintiff to have canceled and erased from the mortgage records of Morehouse parish the inscription of what purports to be a furnisher's lien and privilege in defendant's favor against his residence and lot in the city of Bastrop, La., and to recover damages caused him by the registry of said lien, alleged to be illegal, null, and void.

The facts of the case are virtually undisputed. Plaintiff was having his residence repaired by day labor. He was furnishing all the material needed in the repair work, all of which he purchased from the Bastrop Lumber & Supply Company, including 56,000 red cedar shingles. These shingles were not carried in stock by said company, but were purchased by it on account from defendant and immediately delivered to plaintiff. After the lapse of nearly sixty days and the account still remaining unpaid, defendant evidently had grave fears of its ability to collect it from the Bastrop Lumber & Supply Company, and consulted counsel in regard to the matter. It was advised that under the laws of the state the account was secured by a furnisher's lien and privilege, and, acting on this advice, the account, supported by affidavit, was recorded in the mortgage records to evidence and preserve the lien against plaintiff's property. The account includes several kegs of nails which were not used in plaintiff's building. He paid the Bastrop Company for the shingles. Plaintiff had no dealings with defendant at all, and did not know the lien was recorded until a loan he was negotiating with a local building and loan association was rejected because of its registry. Before filing suit, he made amicable demand upon defendant and its attorneys to have the purported lien erased.

Defendant affirms the legality of the lien, and admits that the shingles were sold directly to the Bastrop Company and not to plaintiff. Its contention is that as the shingles were incorporated in plaintiff's building and were not paid for, under the provisions of Act No. 298 of 1926, it has a lien and privilege on the building and lot to secure payment of the price. It denies specifically the charge that it acted maliciously and without probable cause in the effort to preserve the evidence of its lien.

In reconvention, defendant sues plaintiff for the amount of its account and for recognition of the lien and privilege granted by law to secure its payment.

There was judgment for plaintiff declaring the purported lien and privilege null and void and ordering its erasure from the mortgage records, and for damages in the amount of $ 200.

Defendant has appealed and plaintiff has answered the appeal praying that the award in his favor be increased to $ 600.

Section 1 of Act No. 298 of 1926, in part, reads as follows: "Be it enacted by the Legislature of Louisiana, That every contractor, sub-contractor, architect, engineer, master-mechanic, mechanic, cartman, truckman, workman, laborer, or furnisher of material, machinery or fixtures, who performs work or furnishes material for the erection, construction, repair or improvement of immovable property, with the consent of or at the request of the owner thereof, or his authorized agent, or representative, or of any person with whom the owner has contracted for such work, shall have a lien for the payment in principal and interest of such work or labor performed, or materials, machinery or fixtures furnished, and the cost of recording such liens, upon the land and improvements on which the work or labor has been done, or materials, machinery or fixtures furnished."

Defendant relies upon this law to sustain its contentions herein. Liens are stricti juris. They are in derogation of common rights, and, as is the case with laws creating them, must be strictly construed. Their effect may not be extended by analogy or implication. The statute is free of ambiguity as regards the question here considered. Under this statute, it is essential to the creation and existence of a materialman's lien that the material incorporated into the building or improvement be furnished to the contractor or sub-contractor doing the work, if there be such, or to the owner, or to another person, with the consent of or at the request of the owner, or his authorized agent or...