Shreveport Nat. Bank v. Maples
| Citation | 119 La. 41,43 So. 905 |
| Decision Date | 15 April 1907 |
| Docket Number | 16,312 |
| Court | Supreme Court of Louisiana |
| Parties | SHREVEPORT NAT. BANK v. MAPLES |
Rehearing Denied May 13, 1907.
Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.
Action by the Shreveport National Bank against W. E. Maples. Judgment for plaintiff, and defendant appeals. Modified and affirmed.
Alexander & Wilkinson, for appellant.
Sutherlin & Barret, for appellee.
NICHOLLS, J., disse
OPINION
Statement of Facts.
The Shreveport National Bank brought this suit on a claim against W. E. Maples for $ 2,189.84, as the price of lumber sold to him by the American Lumber Company. The bank was succeeded, as plaintiff, by its liquidators, and the liquidators by the Louisiana Bank & Trust Company, which is the plaintiff now before the court. It is alleged, in the original petition, that the lumber was furnished to W. E. Maples and used by him in the building of a residence in Shreveport; that a detailed and itemized account thereof was duly recorded in the mortgage office of the parish, and operates to preserve the furnisher's privilege for the price. And judgment is prayed for against Maples, with recognition of said privilege upon the building and upon eight lots of ground upon which it is said to stand. To this, Maples answered that certain lumber was purchased by him from the American Lumber Company, under a contract whereby he was to get it at cost, but that the amounts charged in the bill sued on are above cost and excessive; and, further answering, he says that he has paid at least $ 1,000 of debts due by said company, and has thereby more than extinguished any debt due by him for lumber. He especially denies the registry of any sworn account, as alleged, or the existence of any lien or privilege on the property. Plaintiff, through its liquidators, thereupon filed an amended petition adopting the allegations and prayer of the original petition, and further alleging that, since the filing of the original petition, defendant has conveyed, or pretended to convey, the property in question to his wife, by dation en paiement, in restitution of her paraphernalia, but that he owed her nothing on that account; that, moreover, she participated in the obtention of the lumber for the price of which the suit is brought, and, as wife and partner in community, is not a third person with respect to said transaction, but is charged with notice thereof; and that the dation en paiement is of no effect, quoad the claim and privilege here asserted. And there is a prayer for judgment against husband and wife, in solido, for the amount claimed, with recognition of privilege therefor, etc. Defendants answer these allegations by affirming the validity of the dation en paiement, denying the existence of the privilege asserted, etc.
The facts are as follows, to wit: In 1900, defendant's wife, as legatee of Mrs. Mary Jane Furman, came into a considerable inheritance, of which, then and later, she turned over to her husband about $ 30,000, which he invested in his own name. Among other things, he used $ 2,500 in starting the American Lumber Company, of which he was made president, and he had an understanding with two persons, who seem to have been associated with him in the enterprise, and who became stockholders and officers in the company, that he was to have the privilege of buying from the company, at cost, the lumber which might be needed for the building of the residence which he contemplated erecting. Whilst the building was in progress, however, the management of the company was changed, and the new manager, as such, and later as receiver, refused to recognize that understanding, and, though continuing to furnish the lumber, charged for it at the market rates, and on July 21, 1903, caused to be recorded in the mortgage office of the parish a bill and affidavit reading as follows, to wit:
"W. E. Maples, Husband, Mrs. Addie P. Maples,
Wife, to American Lumber Co.
Shreveport, La.
On October 3d following, the assets of the lumber company including the account against W. E. Maples, were sold by order of court and bought by the bank. On December 17th this suit was instituted. On December 24th the dation en paiement was executed and recorded. On January 6, 1904, Maples filed his answer herein. On January 11th plaintiff caused to be recorded a detailed and itemized statement of the account sued on, and (though at what date does not appear) thereafter filed its amended petition, alleging liability on the part of Mrs. Maples, and attacking the dation en paiement, to which, both defendants answered on June 11, 1905. The lumber, for the price of which the suit is brought, was sold to W. E. Maples, and charged to him, and it was accepted by his superintendent of construction and used in the residence built, under his (Maples') directions, on lots owned by him; that which was thus accepted having been of reasonably good quality, and the price charged having been the market rate at the time. Mrs. Maples, as the wife of W. E. Maples, and as the person who, with him and their children, was to occupy the residence, displayed a lively interest in its construction, and made suggestions which were considered, and probably adopted; but it does not appear that she knew whether her husband paid for the lumber in cash, or did not pay at all, and the dation en paiement contains no recital which would have enlightened her on the subject. It appears that Maples had paid two amounts for the company, aggregating $ 341.05, for which he has not received specific credits; but there was found, among the papers of the company, a note for $ 500, signed by him, with others, and the entries on the books seem to indicate...
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