R. F. Mestayer Lumber Co. v. Tessner

• Decision Date: 03 March 1958
• Docket Number: No. 20956,20956
• Citation: 101 So.2d 238
• Parties: R. F. MESTAYER LUMBER COMPANY, Inc., v. Jacqueline TESSNER, Wife of/and Peter M. Tessner.
• Court: Court of Appeal of Louisiana — District of US

Page 238

101 So.2d 238

R. F. MESTAYER LUMBER COMPANY, Inc., v. Jacqueline TESSNER, Wife of/and Peter M. Tessner.

No. 20956.

Court of Appeal of Louisiana, Orleans.

March 3, 1958.

Rehearing Denied March 31, 1958.

Henry F. Mestayer, New Orleans, for plaintiff-appellant.

Richard J. Garvey, New Orleans, for defendants-appellees.

JANVIER, Judge.

Plaintiff, R. F. Mestayer Lumber Co., Inc., appeals from a judgment of the Civil District Court for the Parish of Orleans dismissing its suit for solidary judgment against the defendants, and declaring the nullity and ordering the cancellation of a materialman's lien in the sum of $612.43, which was recorded by the plaintiff corporation on January 25, 1956, in the office of the Recorder of Mortgages for the Parish of Orleans in Book 1873, folio 591.

Several issues are presented, first, and most important of which is whether the lien was recorded within the time required by LSA-R.S. 9:4812, where no contract is recorded and no bond is required of the contractor.

Another issue arises over the question of whether all of the materials were delivered on the premises of the defendants, and a third issue is presented by the contention that certain checks which were given by the defendants to the contractor and 'cashed' for him by the plaintiff corporation, should have been credited to the purchases made by the contractor and delivered on the premises of the defendants.

As already stated, the most important of these issues is presented by the contention that the lien was not recorded within the 60 days required by the cited statute which provides that a building is subject to a lien of the materialman who records his lien 'within sixty days after the date of the last delivery of all material upon the said property or the last performance of all services or labor upon the same, * * *.'

The contractor, who was employed to do the work, was Clarence Hall, and it is shown that at some time before the completion of the contemplated work, probably on November 20, 1955, he discontinued work, and, on November 29, 1955, was notified by the owners that he was not to complete the work.

The lien was recorded on January 25, 1956, which of course was five days more than 60 days after the discontinuance of the work by the contractor (November 20, 1955). However, during the month of December, 1955, Mr. Mestayer, the President of the plaintiff corporation, visited the premises and found, at that time, that some work remained to be done. While Mr. Mestayer could not say just what work had not been completed, he, referring to the owner, Mr. Tessner, said 'he had a lot of work to do yet,' and he further said that he saw someone actually working in the building. If there were any doubt on this subject, however, it is dissipated by the testimony of Mr. Tessner himself who remembered the visit of Mr. Mestayer; said that it was probably during December, 1955, and when asked whether the work had been completed, said: 'No indeed, as he (Mestayer) can tell you.'

Since, at that time, the original contractor, Hall, had been discharged and since most of the work had been done, counsel for defendants argues that when the lien was recorded, more than 60 days had elapsed from the discharge of the contractor and from the time at which the work had been practically completed and that consequently the lien was recorded too late. In support of this argument counsel relies upon the decision of our Brothers of the First Circuit in Cain v. Central Plumbing and Heating Company, La.App., 85 So.2d 376, 377. There, it is true, it was held that, though the work originally contemplated had not been completed, in determining whether the lien had been filed in time, the time at which the work was abandoned should be accepted as the starting time for the running of that 60-day period. The facts in that case justified the conclusion reached by that Court. There the building was being erected by a carpenters' labor union for the use of the union and, as a result, the 'process of construction was somewhat leisurely * * *.' The reason for this was that

'although the materials were purchased from union funds and from the proceeds of the loan, the bulk of the labor was contributed by the members of the local union from their spare time.'

The union became financially embarrassed and 'was unable to complete and finish the upstairs of the building and the stairs leading thereto,' and apparently it abandoned its plans to continue the work, but completed the downstairs so that it might be used commercially. It then rented it to a tenant. Since the work was abandoned and there was no definite determination to complete it at any time, obviously the Court was justified in concluding that the lien should have been recorded within 60 days of the time at which the abandonment was made by the renting of the property to a commercial tenant.

In the case at bar there was never any determination to abandon the building. The work was continued after the discharge of the first contractor and the lien was recorded well within a 60-day period, which had not commenced even when Mr. Mestayer visited the premises in December since the owner himself declared that at that time it had not been completed.

Another case relied upon by the defendants is Trouard v. Calcasieu Building Materials, Inc., 222 La. 1, 62 So.2d 81, 82. There the building to all intents and purposes had been completed more than 60...