Alfred Hiller Co. v. Hotel Grunewald Co.

84 So. 520, 147 La. 129, 1920 La. LEXIS 1841

• Court: Supreme Court of Louisiana
• Decided: April 5, 1920
• Docket: No. 22421
• Status: Published

Opinions

DAWKINS, J.

Plaintiff seeks to recover of the Grünewald Hotel Company, Limited, for materials furnished oné of the contractors employed in erecting defendant’s hotel building in the city of New Orleans. The ground upon which'it is sought to make the defendant liable is that it failed to record the contract and bond for the work within seven days after the same were executed, and before the work was commenced.

Certain exceptions were filed by the defendant, some of which are found in the record, and others seem to have been omitted, but all of which appear to have been overruled.

Defendant then filed a short general denial, and later supplemented the same with an amended answer calling in warranty the American Bonding Company of Baltimore, surety on the bond of the contractors, Expanded Metal Fireproofing Company, and the Northwestern Tile Company.

The warrantor excepted on the ground of vagueness, and, this being overruled, it answered, setting up that the defendant had made material changes in the work with the contractor, without the consent of the warrantor, the bond company, and that it was the duty of the defendant to retain in its hands sufficient funds to cover claims which the contractors might owe other persons, as the law required; that it did so retain a sum more than sufficient to cover the claim of plaintiff; and that any judgment recovered by the Hiller Company, Limited, herein, should be paid out of said fund.

There was judgment in the court below in favor of defendant, and dismissing the warrantor. Plaintiff alone has appealed.

Opinion.

[1] None of the pleas and exceptions of the defendant and warrantor are now before us, for the reason that they did not appeal, nor have they answered the appeal of the plaintiff.