PARDEE, Circuit Judge
(after stating the facts as above). This is a suit involving the recognition and marshaling of privileges, and should have been prosecuted on the equity side of the court and for review brought here by appeal instead of writ of error; but as the parties made no objection in the court below and make none here, and as procedure in the case was made possible by waiver of the jury, we will pass upon the case as made by the parlies in the court below. But see Gravenberg v. Laws, 100 Fed. 1, 40 C. C. A. 240.
We have deemed it advisable to give the full finding of facts by the trial judge to show the pertinency of our remarks and conclusions. As the finding seems to be complete and in no wise inconsistent with the written opinion referred to in the last paragraph thereof, and as [18]*18no objection is made by either party, the last paragraph may be treated as sui'plusage.
The first contention of the plaintiff in error is that the Monongahela Coal Company has no privilege as a furnisher of supplies, because the contract of purchase for the coal is a Pennsylvania contract, and the coal itself was sold by the coal company to Robertson without reference to the Louisiana law with regard to privileges, and even without reference to its use on Robertson’s plantation. The original contract for the sale of the coal bears many of the earmarks of a Pennsylvania contract, but the subsequent facts in the case show that the written contracts upon which suit is brought, to. wit, the notes, were made in Louisiana, and said notes specified that the coal was purchased for Grand Bay Plantation in the parish of Pointe Coupee, and the coal was actually furnished to said plantation and was used thereon for the harvesting of the crop in 1898. Under these circumstances, we think it clear that the furnisher of the coal is within the Revised Civil Code of Louisiana, art. 3217, giving the furnisher of supplies to any farm or plantation a privilege on the crop of the year. See London Assurance v. Companhia De Moagens, 167 U. S. 160, 17 Sup. Ct. 785, 42 L. Ed. 113, and Pullis Bros. Iron Co. v. Parish of Natchitoches, 51 La. Ann. 1377, 26 South. 402. While the last case cited deals with mechanics’ liens, the reasoning and conclusions are applicable to the case in hand. The furnisher’s lien under Rev. Civ. Code, art. 3217, is a statutory lien depending on the destination and use of the supply. Where the preliminary contracts looking to such use are made is apparently immaterial.
The next contention is that the Iberville Planting & Manufacturing Company, having contracted with the owners under Act No. 66, p. 114, Laws La. 1874, to furnish supplies for the Nina and Grand Bay Plantations for planting, cultivating, and harvesting crops grown thereon, and covenanted for a privilege and pledge and pawn of said crops to cover all advances, and the same having been recorded according to law, the said Iberville Planting & Manufacturing Company has a superior lien over other furnishers of supplies for the full amount advanced in the planting, cultivating, harvesting, and marketing of crops on said plantations, although the same exceeds the amounts stipulated in their said contracts as the maximum sum to be advanced; and, as against other furnishers of supplies, reliance is had on the clauses:
“The said Iberville Planting and Manufacturing Company, Limited, shall have the exclusive right to apply the net proceeds of the sale of all of the crop shipped, and all payments of money made to it, to the payment of any indebtedness secured or unsecured which may be due now, or which may hereafter become due to it, by the said Robertson and the said Eiseman, upon open account or otherwise, or to the debt secured and intended to be secured by these presents, according to its view of the exigencies of the case; and that such application may be made at such time and in such manner as said company may elect, and that no application of such proceeds of sale or money to the payment of any debt or open account which may at any time be due to the said company by the said Robertson and Eiseman shall impair, lessen or prejudice the debt secured or intended to be secured by these presents or the security herein and hereby provided for.”
“Robertson and Eiseman shall enter into no other contract or agreement which would operate a lien or privilege on or pledge and pawn of said crops [19]*19in favor of any other person or persons on said crops for the year 1898, or the proceeds thereof.”
The contention is not well founded. Under the contracts in question the Iberville Planting & Manufacturing Company was under no obligation to advance beyond the amount stipulated, and the pledge and pawn under act of 1874 covered no further sums than the limits named in the contracts. Other furnishers of supplies were not bound beyond recorded contracts. Tor supplies furnished the plantations beyond the contracted maximum stipulated in the contracts, the Iber-ville Planting & Manufacturing Company stands on the same footing as other furnishers of supplies, and must look to article 3217, Rev. Civ. Code, for a privilege. See Minge & Co. v. Barbre, 51 La. Ann. 1285, 26 South. 180.
In National Bank of Commerce v. Sullivan, 117 La. 181, 41 South. 480, the case relied on by the plaintiff in error, the privilege allowed was under article 3217, Rev. Civ. Code, and, Minge & Co. v. Barbre having been cited to defeat a privilege, the court said:
“The case relied on is. however, inapplicable, since, from the face of the act of pledge here presented, it is evident that the parties contemplated other advances to be otherwise secured, the limit of which is not fixed.”
The last contention is that, in addition to the superior lien acquired by the Iberville Planting & Manufacturing Company under their contract for the maximum sums stated therein, it is entitled to a subrogation to certain superior liens originally held by other parties and paid by the said company to protect their privilege as factors. According to the finding of facts, the lessor’s lien, the insurance premiums, the taxes, and the sums due for cane purchased, all privileged over the factors, were paid by the Iberville Planting & Manufacturing Company to protect their privilege as factors, but paid to Robertson & Eiseman, and they used the money so advanced to them to pay the claims which were justly due and owing. There is no finding as to when the Iber-ville Planting & Manufacturing Company paid the money to Robertson & E',iseman, nor as to when the latter paid the privilege holders, nor as to whether these amounts formed a part of the $19,000 for which the company is given a superior lien. The finding of facts is also silent as to whether there was any conventional transfer or sub-rogation made or attempted. Under these circumstances, and as to these items, the case seems to be within the rule declared in Shaw & Zuntz v. Knox, 12 La. Ann. 41, and Shaw v. Grant, 13 La. Ann. 52, and the claimed subrogation should be denied.
As to the laborers’ privilege on the entire crop, and particularly on the sugars sequestered in this case, the finding is:
“The sugar sequestered under the writ of the Monongahela Coal Company owed to the laborers on the plantation the sum of 85,922.95, a claim superior in rank to that of the factor’s lien and the furnisher of supplies. The laborers threatened the seizure of the sugars, and were asserting their superior privilege thereon for the payment of the debt which was due them.
Free access — add to your briefcase to read the full text and ask questions with AI
PARDEE, Circuit Judge
(after stating the facts as above). This is a suit involving the recognition and marshaling of privileges, and should have been prosecuted on the equity side of the court and for review brought here by appeal instead of writ of error; but as the parties made no objection in the court below and make none here, and as procedure in the case was made possible by waiver of the jury, we will pass upon the case as made by the parlies in the court below. But see Gravenberg v. Laws, 100 Fed. 1, 40 C. C. A. 240.
We have deemed it advisable to give the full finding of facts by the trial judge to show the pertinency of our remarks and conclusions. As the finding seems to be complete and in no wise inconsistent with the written opinion referred to in the last paragraph thereof, and as [18]*18no objection is made by either party, the last paragraph may be treated as sui'plusage.
The first contention of the plaintiff in error is that the Monongahela Coal Company has no privilege as a furnisher of supplies, because the contract of purchase for the coal is a Pennsylvania contract, and the coal itself was sold by the coal company to Robertson without reference to the Louisiana law with regard to privileges, and even without reference to its use on Robertson’s plantation. The original contract for the sale of the coal bears many of the earmarks of a Pennsylvania contract, but the subsequent facts in the case show that the written contracts upon which suit is brought, to. wit, the notes, were made in Louisiana, and said notes specified that the coal was purchased for Grand Bay Plantation in the parish of Pointe Coupee, and the coal was actually furnished to said plantation and was used thereon for the harvesting of the crop in 1898. Under these circumstances, we think it clear that the furnisher of the coal is within the Revised Civil Code of Louisiana, art. 3217, giving the furnisher of supplies to any farm or plantation a privilege on the crop of the year. See London Assurance v. Companhia De Moagens, 167 U. S. 160, 17 Sup. Ct. 785, 42 L. Ed. 113, and Pullis Bros. Iron Co. v. Parish of Natchitoches, 51 La. Ann. 1377, 26 South. 402. While the last case cited deals with mechanics’ liens, the reasoning and conclusions are applicable to the case in hand. The furnisher’s lien under Rev. Civ. Code, art. 3217, is a statutory lien depending on the destination and use of the supply. Where the preliminary contracts looking to such use are made is apparently immaterial.
The next contention is that the Iberville Planting & Manufacturing Company, having contracted with the owners under Act No. 66, p. 114, Laws La. 1874, to furnish supplies for the Nina and Grand Bay Plantations for planting, cultivating, and harvesting crops grown thereon, and covenanted for a privilege and pledge and pawn of said crops to cover all advances, and the same having been recorded according to law, the said Iberville Planting & Manufacturing Company has a superior lien over other furnishers of supplies for the full amount advanced in the planting, cultivating, harvesting, and marketing of crops on said plantations, although the same exceeds the amounts stipulated in their said contracts as the maximum sum to be advanced; and, as against other furnishers of supplies, reliance is had on the clauses:
“The said Iberville Planting and Manufacturing Company, Limited, shall have the exclusive right to apply the net proceeds of the sale of all of the crop shipped, and all payments of money made to it, to the payment of any indebtedness secured or unsecured which may be due now, or which may hereafter become due to it, by the said Robertson and the said Eiseman, upon open account or otherwise, or to the debt secured and intended to be secured by these presents, according to its view of the exigencies of the case; and that such application may be made at such time and in such manner as said company may elect, and that no application of such proceeds of sale or money to the payment of any debt or open account which may at any time be due to the said company by the said Robertson and Eiseman shall impair, lessen or prejudice the debt secured or intended to be secured by these presents or the security herein and hereby provided for.”
“Robertson and Eiseman shall enter into no other contract or agreement which would operate a lien or privilege on or pledge and pawn of said crops [19]*19in favor of any other person or persons on said crops for the year 1898, or the proceeds thereof.”
The contention is not well founded. Under the contracts in question the Iberville Planting & Manufacturing Company was under no obligation to advance beyond the amount stipulated, and the pledge and pawn under act of 1874 covered no further sums than the limits named in the contracts. Other furnishers of supplies were not bound beyond recorded contracts. Tor supplies furnished the plantations beyond the contracted maximum stipulated in the contracts, the Iber-ville Planting & Manufacturing Company stands on the same footing as other furnishers of supplies, and must look to article 3217, Rev. Civ. Code, for a privilege. See Minge & Co. v. Barbre, 51 La. Ann. 1285, 26 South. 180.
In National Bank of Commerce v. Sullivan, 117 La. 181, 41 South. 480, the case relied on by the plaintiff in error, the privilege allowed was under article 3217, Rev. Civ. Code, and, Minge & Co. v. Barbre having been cited to defeat a privilege, the court said:
“The case relied on is. however, inapplicable, since, from the face of the act of pledge here presented, it is evident that the parties contemplated other advances to be otherwise secured, the limit of which is not fixed.”
The last contention is that, in addition to the superior lien acquired by the Iberville Planting & Manufacturing Company under their contract for the maximum sums stated therein, it is entitled to a subrogation to certain superior liens originally held by other parties and paid by the said company to protect their privilege as factors. According to the finding of facts, the lessor’s lien, the insurance premiums, the taxes, and the sums due for cane purchased, all privileged over the factors, were paid by the Iberville Planting & Manufacturing Company to protect their privilege as factors, but paid to Robertson & Eiseman, and they used the money so advanced to them to pay the claims which were justly due and owing. There is no finding as to when the Iber-ville Planting & Manufacturing Company paid the money to Robertson & E',iseman, nor as to when the latter paid the privilege holders, nor as to whether these amounts formed a part of the $19,000 for which the company is given a superior lien. The finding of facts is also silent as to whether there was any conventional transfer or sub-rogation made or attempted. Under these circumstances, and as to these items, the case seems to be within the rule declared in Shaw & Zuntz v. Knox, 12 La. Ann. 41, and Shaw v. Grant, 13 La. Ann. 52, and the claimed subrogation should be denied.
As to the laborers’ privilege on the entire crop, and particularly on the sugars sequestered in this case, the finding is:
“The sugar sequestered under the writ of the Monongahela Coal Company owed to the laborers on the plantation the sum of 85,922.95, a claim superior in rank to that of the factor’s lien and the furnisher of supplies. The laborers threatened the seizure of the sugars, and were asserting their superior privilege thereon for the payment of the debt which was due them. The Iberville Planting & Manufacturing Company, in order to protect their privilege as factors, directed their agent, If. O. Lieux, to draw upon it for the amount of said claims so as to relieve said sugars from the threatened seizure, and the claims aggregating the amount aforesaid, to wit, 85,922.95, [20]*20were paid by the Iberville Planting & Manufacturing Company as against the consignment of said sugars to it, and the amounts so paid were charged on the books of the Iberville Planting & Manufacturing Company to Robertson & Eiseman on the crop cultivated, manufactured, and shipped for the year 1898, $5,922.95.”
These facts bring the payment of the laborers’ privilege within the letter and spirit of the Code on legal subrogation (article 2161, Rev. Civ. Code), to wit:
“Subrogation takes place of right for the benefit of him who being himself •a creditor pays another creditor whose claim is preferable to his by reason of his privileges or mortgages.”
The Iberville Planting & Manufacturing Company was a creditor. To protect its privilege it paid the laborers whose privilege was preferable. It paid direct, and, on payment, took possession of the sugars in question. That the amount paid was charged on the books of the Iberville Company to Robertson & Eiseman on the crop cultivated, manufactured, and shipped for the year 1898 is wholly immaterial as affecting the subrogation, but it may be noticed that such charge was proper, and, in fact, called for, as the Iberville Planting & Manufacturing Company was bound to account for the entire crop of 1898.
The facts do not show a case of payment by a factor of debts due by his principal in the ordinary course of business, and therefore Shaw & Zuntz v. Knox, 12 La. Ann. 41, and Shaw v. Grant, 13 La. Ann. 52, do not apply. In Zeigler v. His Creditors, 49 La. Ann. 187, 21 South. 684, the right of subrogation was recognized for an ordinary creditor, and in the opinion legal subrogation is fully discussed, .and the conclusion is:
“We think reason and authority, as well as the text of the Code, sustains •our opinion that gives the bank, in this ease the creditor of Zeigler, the sub-rogation to that mortgage, securing the debt the bank discharged.”
We are clear that the same may be said as to subrogation of the Iberville Planting & Manufacturing Company to the laborers’ privilege, a conceded superior lien. And see Laloire v. Wiltz, 31 La. Ann. 436; Saloy v. Dragon, 37 La. Ann. 71.
It follows that the court below erred in holding that the sum of $32,730.64 was in the hands of the Iberville Planting & Manufacturing 'Company subject to special and general privileges, as that sum should be reduced by the amount of the laborers’ privileges, to wit, the sum of $5,922.95, leaving subject to other privileges the sum of $26,807.69, and from this that he erred in giving judgment in favor of the Monongahela Coal Company for the sum of $3,209.56, instead of the sum of .$2,628.75.
The judgment of the Circuit Court is amended by reducing the amount thereof from $3,209.56 to $2,628.75, and, as thus amended, is .affirmed.