State ex rel. Noullet v. Acme Lumber Co.
| Decision Date | 18 December 1905 |
| Docket Number | 15,726 |
| Citation | 40 So. 301,115 La. 893 |
| Court | Louisiana Supreme Court |
| Parties | STATE ex rel. NOULLET v. ACME LUMBER CO. et al |
Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.
Application by the state, on the relation of Frank J. Noullet, for writ of mandamus to the Acme Lumber Company (B. S. Coleman proprietor) and others. From an order denying the writ relator appeals. Affirmed.
Edward Alexander Parson and George Bush Smart, for appellant.
Pierson Walton & Pierson, for appellee Acme Lumber Co.
Walter Louis Gleason, for appellee recorder of mortgages.
Frank J. Noullet is relator in mandamus proceedings to compel the recorder of mortgages to cancel a lien inscribed in favor of respondent, the Acme Lumber Company.
In the same petition relator further asks for judgment against the Acme Lumber Company and against the Title Guaranty Trust Company, security on its bond, in solido, for $ 10,000 for damages claimed against the former.
Noullet, the relator, entered into a contract with the board of commissioners of the McDonogh school fund for the erection and completion of McDonogh School Building No. 31, on St. Ann street, near Bayou St. John, for about $ 40,000.
Relator entered into three different contracts with the Acme Lumber Company, lumber manufacturers, whereby they became subcontractors under relator to furnish all factory work.
The contract of September 5, 1904, contains the following clause:
Another contract, bearing the date of September 29, 1904, contains the following:
"Free from all liens and claims for labor, material, freight, beltage, and drayage charges."
In section 9 of the same contract it is repeated that the Acme Lumber Company shall satisfy all sums due or which might become due by the Acme Lumber Company to any subcontractor with whom they might contract for material, or for any sum due by them to laborers and other employes to be engaged in complying with their contract.
Relator avers that the Acme Lumber Company has violated its subcontracts; that it has not carried out its obligations.
He further charges that the Acme Lumber Company has against relator inscribed upon the books of the recorder of mortgages their asserted liens and privileges and that by this inscription he has been damaged.
The recorder of mortgages, the Acme Lumber Company, and its security, the Title Guaranty Trust Company, interposed an exception of no cause of action.
In the answers filed, reserving their right as set up in their exceptions, they controvert relator's right to have the registry of their lien canceled and erased, and they deny all of relator's averments save those specially admitted.
The learned judge of the district court, after having heard evidence, recalled the writ of mandamus and dismissed relator's suit.
The petition for damages beyond all question was properly dismissed. Relator has not pressed the claim for damages before this court. He has, we take it, accepted the ruling heretofore upon that branch of the case as correct. We only refer to it for the reason that it appears to us that relator's claim and the counterclaims of the Acme Lumber Company can better be settled in a direct action. They involve the interpretation of contracts. The obligations of parties will have to be considered; the performance...
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