Central Manufacturing & Lumber Co. v. Darcantel

2 Teiss. 444, 1905 La. App. LEXIS 100

• Court: Louisiana Court of Appeal
• Decided: June 27, 1905
• Docket: No. 3710
• Status: Published

Opinion

DUFQUR, J.

This suit is By a furnisher of materials, used in building a house, valued at the sum of $265.95, and is aimed at the owners' on the ground that they did not properly give the bond required by law under the Act of 1894.

The bond and contract which it secured were recorded together on August 13th, although they show on their face that they were1 signed on August 5th.

The defendants, alleging error in their' answer, offered testimony to prove that the documents were only signed on August 13th, and the quesfidh before us is whether or not the error in the date could be corrected so as to affect the material man.

We need not discuss the rtile as ‘between the original parties, but may consider alone its effect on third parties.

In the present instance, the date is of the essence of the matter, because if the contract and bond were, as they show, signed on the 5tlt and recorded only on the 13th, under the terms of the Act of 1894, the owners have failed to record one week after signing, and are hence personally liable to the owner, a third party.

The section of the Am. and Eng. Eyc., La. 2nd EcL, Vol. 21, p. 1102, invoked by defendants to justify their offer, states very clearly that the rule applies to parties or representatives or privies and has no application to strangers.

If the rule were otherwise, collusion on the part of the original parties might frequently destroy the rights of third parties based on writings, by the introduction of parol evidence.

It is the policy of the law to permit strangers to a writing to attack it for their own protection, and it is equally logical not to permit a change in such writing "by parol to the detriment of their own interest.^ >

Such is our understanding of our jurisprudence.

In 52 An. 967, the Court said:

‘■'But if by error, or ignorance of the law, one has done himself a prejudice which cannot be repaired' without breaking in upon the right of another, the error shall not be corrected, to the prejudice of the latter.”

This view was approved in 110 La. 493.

In iro La, the Supreme Court said:

“The Court therefore recognized the doctrine that whilst error in description may be corrected, as between the parties to the act, in which they appear, a very different case presents itself when a third person has in the meantime acquired right which might be prejudiced by such correction.”

See also 95 U. S. (5th Otto), 16.

There is no question presented by the pleadings or the admissions which constitutes the whole testimony, as to whether plaintiff acted on .the faith of the records as registered. The only question is as to the personal liability of the defendants in consequence of their failure to give a proper 'bond.

June 27th, 1905.

On the face as registered, they fastened personal liability on. the owners.

The evidence to change the date should have been excluded.

Judgment reversed, and judgment is now rendered in favor ot plaintiff and, against defendants in the sum of $260.95, with legal interest from judicial demand, recognition of privilege, and all costs.