Whitney-Central Trust & Sav. Bank v. General Fire Extinguisher Co.

• Decision Date: 09 March 1917
• Docket Number: 2996.
• Citation: 240 F. 631
• Parties: WHITNEY-CENTRAL TRUST & SAVINGS BANK v. GENERAL FIRE EXTINGUISHER CO. et al. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

240 F. 631

WHITNEY-CENTRAL TRUST & SAVINGS BANK v. GENERAL FIRE EXTINGUISHER CO. et al. ^[1]

No. 2996.

United States Court of Appeals, Fifth Circuit.

March 9, 1917

Charles F. Borah, of New Orleans, La. (Borah, Himel, Bloch & Borah of New Orleans, La., on the brief), for appellant.

Henry Mooney, R. E. Milling and Solomon Wolff, all of New Orleans La., for appellees.

Before PARDEE and WALKER, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge.

This is an appeal from a decree rendered in the suit of the Erie City Iron Works against the Cecilia Sugar Company, Limited, and others, on the intervening petition of the appellee, the General Fire Extinguisher Company, which adjudged that that intervening petitioner be recognized as a creditor of the Cecilia Sugar Company, Limited, for the sum of $8,610.36, and costs of the intervention, together with the privilege of a furnisher of materials, superior to that of the mortgage creditor of the Sugar Company, upon the latter's sugar house and the land upon which it stood, not exceeding one acre, and which also adjudged that the intervening petitioner be recognized as a creditor of the Sugar Company for the sum of $956.70, with a vendor's privilege on certain movables sold by it to the Sugar Company and not incorporated by the latter in the sugar house. Decrees rendered on other interventions in the same suit were before this court in the case of Whitney-Central Trust & Savings Bank v. Luck et al., 231 F. 431, 145 C.C.A. 425. The opinion in that case sets out and applies some of the provisions of the statute law of Louisiana which are applicable to the facts of the instant case.

The demand of the General Fire Extinguisher Company was for the price of pipe, valves, and fittings supplied by it to the Cecilia Sugar Company, Limited, under a contract entered into by the latter company in writing accepting two written proposals made by the former company, each of such proposals and the acceptance thereof bearing date September 4, 1912. One of those proposals was a quotation of prices of the several items on a long list of described pipe, valves, and fittings. The other proposal stated a discount to be allowed from the list prices, contained a provision allowing the Sugar Company to return designated pipe and fittings specified requirements to be complied with by the Sugar Company, and stated the limit within which the Fire Extinguisher Company was to complete delivery and the terms of payment. The first-mentioned proposal, with the acceptance of it, was filed for record with the recorder of mortgages of the parish of St. Martin, in which the Sugar Company's sugar house was located, and was recorded on September 11, 1912. The other proposal was never filed with the recorder of mortgages, nor recorded. In November, 1912, there was filed with the recorder mentioned a list of the invoices of material sold by the Fire Extinguisher Company to the Sugar Company, and an affidavit showing the correctness of the list just mentioned, and stating:

'That said materials were used by said Cecilia Sugar Company, Limited, in the repair or construction of a sugar mill and appurtenances located on that certain tract of land owned by the Cecilia Sugar Company, Limited, at or near Cecilia, La.'

Questions are raised as to the meaning and applicability to the facts of this case of the following provisions of the Civil Code of Louisiana:

'Art. 2775. Contracts Exceeding $500-- Recordation-- Privilege.-- No agreement or undertaking for work exceeding five hundred dollars, which has not been reduced to writing and registered with the recorder of mortgages, shall enjoy the privilege above granted.' 'Art. 3249. Privileges on Immovables.-- Creditors who have a privilege on immovables, are:

'1. Vendor.-- The vendor on the estate by him sold, for the payment of the price or so much of it as is unpaid, whether it was sold on or without a credit. * * *

'3. Material Men.-- Those who have supplied the owner or other person employed by the owner, his agent or subcontractor, with materials of any kind for the construction or repair of an edifice or other work, when such materials have been used in the erection or repair of such houses or other works.

'Privilege on Building and Lot.-- The above named parties shall have a lien and privilege upon the building, improvement or other work erected, and upon the lot of ground not exceeding one acre, upon which the building, improvement or other work shall be erected; provided, that such lot of ground belongs to the persons having such building, improvement or other work erected; and if such building, improvement or other work is caused to be erected by a lessee of the lot of ground, in that case the privilege shall exist only against the lease and shall not affect the owner. * * * '

'Art. 3272. Contractors, Workmen and Material Men.-- Architects, undertakers, bricklayers, painters, master builders, contractors, subcontractors, journeymen, laborers, cartmen, masons and other workmen employed in constructing, rebuilding or repairing houses, buildings, or making other works; those who have supplied the owner or other person employed by the owner or his agent or subcontractor with materials of any kind for the construction or repair of his buildings or other works; those who have contracted, in the manner provided by the police regulations, to make or put in repair the levees, bridges, canals and roads of a proprietor, preserve their privileges, only in so far as they have recorded, with the recorder of mortgages in the parish where the property is situated, the act containing the bargains they have made, or a detailed statement of the amount due, attested under the oath of the party doing or having the work done, or acknowledgment of what is due to them by the debtor.

'The privileges mentioned in this article are concurrent.'

'Art. 3274. Where and When Recordation to be Made.-- No privilege shall have effect against third persons, unless recorded in the manner required by law in the parish where the property to be affected is situated. It shall confer no preference on the creditor who holds it, over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded within seven

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