Sundbery's, Inc. v. Price
| Decision Date | 21 December 1959 |
| Docket Number | No. 4929,4929 |
| Citation | 117 So.2d 328 |
| Parties | SUNDBERY'S, INC., Plaintiff-Appellee, v. Lloyd PRICE, Defendant-Appellant (Delta Investment Corporation, Third-Party Defendant-Appellee). |
| Court | Court of Appeal of Louisiana — District of US |
Elton A. Darsey, Houma, for appellant.
Claude B. Duval, Baron B. Bourg, Richard E. Talbot, Houma, for plaintiff.
Gravel, Humphries, Sheffield & Mansour, Alexandria, for third-party defendant.
Before ELLIS, LOTTINGER and TATE, JJ.
This is an action by the furnisher thereof to recover for materials used in remodeling defendant Price's home. The work had been performed and the materials purchased from the plaintiff by a contractor, the Monarch Specialty Corporation, which subsequently failed to pay for them. Since no contract and bond had been recorded by Price, the plaintiff as furnisher of the materials impleaded him, the owner, as defendant as well as the contractor, having previously filed timely its lien. LSA-R.S. 9:4812.
Price, the defendant-owner, appeals from judgment casting him for the unpaid balance of $1,461.40 for materials used in the improvement and repair of his home. By this appeal, he also prays alternatively that if the award against him is affirmed, then that judgment over be rendered in his favor against the Delta Investment Corporation upon his third party demand, which had been dismissed below.
It is conceded that, even though there was no contractual relationship between them, the plaintiff supplier of the materials is entitled to judgment under LSA-R.S. 9:4812 against the defendant owner upon proof that the materials were delivered to the latter's premises. Laney Co. v. Airline Apartments,223 La. 1000, 67 So.2d 570. The defendant's principal contention is that the delivery of the material to his premises has not been proved and that therefore the judgment in favor of the plaintiff should be reversed. Bernard Lumber Co. v. Sayre, 230 La. 17, 87 So.2d 713; Moore Steel, Inc. v. Wright's Succession, La.App. 1 Cir., 79 So.2d 118.
The proof of the delivery of the materials to the defendant Price's premises consisted solely of the testimony of plaintiff's manager identifying dray receipts from the plaintiff's business records introduced into testimony, each listing the materials transmitted and showing (with one exception, to be discussed below) that the materials were delivered to the Price job. This manager testified that there would be a different notation upon these dray receipts if the materials had been delivered elsewhere. These dray receipts were signed by 'Lee Cole', identified as the contractor's carpenter-foreman for the Price job, whose whereabouts were unknown at the time of trial.
Since the plaintiff supplier maintained no record of the truck drivers who delivered the respective loads of materials, and since its truck driver personnel had changed in the 2 1/2 years between the delivery of the materials and the trial below, the plaintiff made no effort to secure the testimony of any truck drivers who had delivered the material to the Price premises but relied solely upon the dray receipts showing such delivery, signed by the contractor's employee at the time of delivery. Copies of these itemized dray receipts were filed in the conveyance records when plaintiff inscribed its materialman's lien against Price's property within sixty days after the contract's completion and its acceptance by Price.
Price has never denied nor produced proof that such materials were not delivered to his premises, his contention simply being that the dray receipts do not by themselves sufficiently prove delivery; being hearsay evidence, to the admissibility of which he made timely objection. The defendant owner also points out that the contractor had been repairing several other homes at the time it performed its contract with him.
We think that the trial court correctly held that in a suit by the furnisher of the materials against an owner who has failed to record a bond, a dray receipt signed by the contractor or his agent is sufficient proof that the delivery was made as stated in the dray receipt, at least in the absence of evidence contradictory thereof. See Laney Co. v. Airline Apartments, 223 La. 1000, 67 So.2d 570; R. F. Mestayer Lumber Co. v. Tessner, La.App.Orl., 101 So.2d 238; Allen B. Cambre Lumber & Supply Co. v. Loomis, La.App.Orl., 94 So.2d 908; Louisiana Lumber Supply Co. v. Reeves, La.App. 1 Cir., 55 So.2d 64.
Able counsel for defendant-appellant further contends that the dray receipts were not admissible in evidence over his objection as...
To continue reading
Request your trial
-
Continental Casualty Co. v. Associated Pipe & Supply Co., Civ. A. No. 12713
...Ins. Co., 225 La. 1017, 74 So.2d 198 (1954); Laney Co. v. Airline Apartments, 223 La. 1000, 67 So.2d 570 (1953); Sundbery's, Inc. v. Price, 117 So.2d 328 (La.App. 1 Cir. 1960); Mestayer Lumber Co. v. Tessner, 101 So.2d 238 (La.App.1958); Dixie Building Material Co. v. Chartier, 8 La.App. 46......
-
Hattiesburg Mfg. Co. v. Pepe
...contractor's foreman, Carson Odom). The invoices in question were similar to dray receipts introduced in evidence in Sundbery's, Inc. v. Price, La.App., 117 So.2d 328. The documents in question are not part of plaintiff's books insofar as Article 2248 LSA-C.C. refers to books of account. In......
-
C.F. Dahlberg & Co., Inc. v. Chevron U.S.A., Inc.
...were not in fact used in the construction of his building." (Louisiana Private Works Act Sec. 9:4812). See also Sundbery's Inc. v. Price, 117 So.2d 328, 330 (La.Ct.App.1959); Louisiana Lumber Supply Co. v. Reeves, 55 So.2d 64, 68 (La.Ct.App.1951). Although there are no cases discussing such......
-
Burdette v. Drushell
...See United States v. Flom, 558 F.2d 1179, 1182 (5th Cir.1977), 2 Fed. R.Evid. Serv. 451.7 In the case of Sundbery's, Inc. v. Price, 117 So.2d 328, 329-30 (La.App. 1st Cir.1960), a supplier of building materials sought recovery for the price of supplied for the remodeling of the defendant's ......