Lambert Bros. v. Hertz

2 Pelt. 470

• Court: Louisiana Court of Appeal
• Decided: May 15, 1919
• Docket: No. 7560
• Status: Published

Opinion

CHARLES F. CLAIBORNE, JUDGE.

This ie a suit to recover the cost of Installing Beverage in a house.

The defendant, Frank Hertz, vas the owner of a property -designated by the No, 4219 Laurel 3treot; on June 22d, 1914, he executed in favor of John Doormans a "bond for dead" by which he agreed to sell to him the above mentioned property for the price of $1750 payable in monthly installments of $20 eaoh beginning July 1st, 1914; the actual transfer to be made when the purchaser shall have paid one-third of the purchase price; the purchaser was to pay all taxes and to insure in the name of the owner and to go into immediate possession.

Doormans went into possession of the property, and it is not claimed that he failed to make any of the payments ae they became due.

On February 9th, 1916, Doormans made a contract with the plaintiffs herein by which they were to install Plumbling and Sewerage and to furnish and put up in said building 4219 Laurel ¿treat the following improvements, viz:- a porcelain lined oath tub, washstand and closet, kitchen sink, slop sink and hydrant faucet in yard, all for the price of 0155.00,- payaüle as follows: one note of '15, and 14 notes of Í10 each, payado monthly; a default of any one note to make all the other notes become due; the notes stipulated eight per cent per annum interest from maturity till paid, and twenty per cent attorney's fees in case of suit to enforce their payment.

The plaintiffs recorded this contract on February 10th, 1916. They made the improvements and received payment of the first and seoond note amounting to 325.

Upon Doormans' failure to pay any more notes, Lambert Brothar», on November 17th, 1014, tiled suit against him on th* thlrtoon unplad notos of $10 oaoh, amounting to $130 - and obtained Judgment against him for that amount with sight par oent Interoat and twenty par cent attorney's fees, nnd privilege upon the property 4219 Laurel Street.

On March 21st, 1917, the plaintiffs filed tha present suit against Trank Hsrtz. They alleged all tha facta above red ted, and, further, that since the filing of the ault against Doormans they had learned that the title of the property is recorded in tha name of Frank Hertz, and that Doormans was in pos-sssslon of it by virtue of a Bondfor Deed; that Doormens had improved the property end acted as the owner of it; and they prayed for a Judgment against Hertz for $130, with eight per oent Interest, ten per oent attorney's foi-s nnd privilege upon the property.

Hertz denied that Doormans was the owner of the property and admitted that he was the owner; he admitted that Doormans had been in possession under the bond for deed, nnd that he had paid a number of installments as required by that act; that he was Informed that Doormans had nade improvements bn the property, but that the same had been made without his knowledge or consent.

There was Judgment in favor of the plaintiffs and against the defendant Hertz for $130 with eight per cent interest and ten per oent attorney's fees, but denying the privilege claimed on the property.

From this Judgment the defendant Hertz has appealed. The plaintiffs,in this Court, have asked that the Judgment be amended by allowing them the privilege claimed by them.

We do not think that this "Bond for Deed" was a sale or an act translative of property either under the law or in the minds of the contracting parties; there was something else to be done by both parties before the title passed; Doormans had to comply with certain conditions of the Bond as a condition preoedent to his right to olalm a deed, and Hertz was not bound to sign a deed until Doormans had complied with them; and there was an act of sale to be passed by Hertz to Doormans on the latter complying with certain conditions. Talbot vs. N. O. Land Co., 143 La., 263.

This case doe» not differ materially from the case of Lambert Bros. vs. Throunk, No. 7302, decided by us on April 22d, 1916. TYie improvements made mere identically the same, and' in both cnses the party contracting for the work was in possession of the property and administering the ‘same with the consent of the owner.

Te there held that the work done was not suoh only as suited the necessities or pleasure of the parties in posssssion, but that it was work required by law, a..d such as the owner himself would have been Obliged to do sad pay for, the payment of which was secured by privilege, and which Inured to the benefit of the property owned, by him, as a permanent and inseparable improvement, and for whioh therefore he was liable, as well as John Doormans.

Th«ronse ifl not in conflict **itn Al/riers Torks vs. " §zr/<? Thite lio. 6778 of this Court.

Acts Nos. 4 and 6 of the Extra Session of 1895 p. 6.16 provided for a Constitutional Amendment for the creation of a oewerage and Tatar Board for the City of New Orleans. Section 20 of the latter act authorized said Board "to compel all premises in the City of New Orleans to be connected with said system," Section 1 of Act 270 of 1908 made it the duty of said Board "to require all inhabited premises in the City of New Orleans to be connected with the mains of said system," and 3ectlon 3 provided that said Board "shall also have the power to do, or to cause to be done, upon the defaulting premises, that which its ordinances and regulations require, at the cost and expanse of the owner, and such costs and expenses shall bo a lien in said premises equal in rank to the lien of taxes Sc",

The owner is presume;} to have consented that the occupant ¿su'd-* of the property should^do/what the law would compel him to do.

The plaintiff is also entitled to the contractor's privilege. C. C. 2772 (2743), 3249 (3216), 3272 (3239); 25 A., 518 (520); 30 A., 361; 40 A., 264.

But as we said in Lambert vs. Throunk:

"To do not think that the defendant can be condemned to pap the interest nor the attorney's fees stipulated On Woodruffs (Doormans) note. He (Doormans) never agreed to this nor ratified it, nor was he benefited by it".

It is therefore ordered that the judgment herein be amended so as to read as. follows: It is ordered that the defendant, Frank Hertz, be oondemned to pay to the plaintiffs, Lambert Brothers, One.Hundred and Thirty.Dollars with five par cent per annum interest from February 9th, 1916 till paid and all costs of the District Court with privilege upon the lot of ground No. 4219 Laurel Street and upon the buildings and lm-provemsnts erected thereon; and it ^further ordered that the coats of appeal be paid by the plaintiffs herein.

Hey 15th, 1919.