Monroe Grocer Co. v. J. A. Perdue & Co.

48 So. 1002, 123 La. 375, 1909 La. LEXIS 713

• Court: Supreme Court of Louisiana
• Decided: March 1, 1909
• Docket: No. 17,268
• Status: Published

Opinions

BREAUX, C. J.

Plaintiffs are the creditors in the sum of $2,100 of the J. A. Perdue & Co., Limited, contractors, who left the state a short time before suit was brought. They proceeded against their debtors by attachment.

As they were absent, a curator ad hoc was appointed to represent the latter.

Plaintiffs at the time obtained a writ of garnishment, and made the Southern Development Company a party garnishee to the suit, to which interrogatories were propounded.

The Southern Development Company, through its president, answered the interrogatories and denied indebtedness to J. A. Per-due & Co.; stated that Perdue & Co. had constructed part of the line of the railway of the Arkansas, Louisiana & Gulf Railway Company between Bastrop and Monroe; that this was done under a contract with the Southern Development Company; that the amount of the work performed by the Perdue Company was $54,795.83, of which the Southern Development Company had paid to Perdue & Co. a considerable amount, leaving due, however, the sum of $3,437.57; but that said Per-due & Co. are indebted to the Southern Development Company in an amount largely in excess of this last-mentioned sum. To quote literally from the answer:

“On account of claims against the said Southern Development Company for amount of damages (sustained by property holders along said line of railway) due by said company, which bear a lien and privilege on the property of the said Southern Development Company and said Arkansas, Louisiana & Gulf Railway Company for delay in completing the work, the faulty and negligent character thereof, and the unnecessary expense caused by the failure of the Perdue Company to fulfill the terms of its contract with the Southern Development Company, so that the Southern Development Company is not indebted to the Perdue Company in any amount.”

It was noted that nothing was said in the reference originally about a reconventional demand. The issue here is compensation vel non. Although the debtors were not present, it is not evident that they- were not residents of the parish in which the suit was brought. Be that as it may, the issues under the pleadings and facts are limited to whether there was or was not compensation.

To state the idea in different words: The Southern Development Company, a constructing company, which was under obligations-in accordance with a contract with the railroad company named, gave part of its work, as we take it, to be done by the Perdue Company. It is very apprehensive that at an early date the railroad representatives will call upon it, the garnishee, to pay for work that Perdue & Co. failed to properly and timely perform. The garnishee in general terms also claims damages in its own right.

The nature of the work and the amount of the damages are not stated.

The curator ad hoc, representing Perdue & Co., in his answer to plaintiff’s petition in this suit, stated that he made inquiry and found that Perdue & Co., whom he represented, were at Pine Bluff, Ark. He wrote to-them. To his letter the firm answered that the company had no defense to make.

The curator ad hoc produced the letter, and it was offered in evidence by plaintiff.

In this letter Perdue & Co. stated that they were indebted to the Monroe Grocer Company ; intended to pay their indebtedness as soon as they could get a final settlement; that they did not wish to contest the suit, but were opposed to paying before obtaining a final settlement; and in that event, to-quote from the letter:

“We want our funds prorated among the people we owe there, and then make arrangements to pay my balances.”

The word “my” of the letter being evidently an error.

The plaintiff in the garnishment proceedings — that is, the Monroe Grocer Company— traversed the answer of the garnishees, except as the garnishees showed by their answers that the Southern Development Company is indebted to J. A. Perdue & Co. in the•sura of $3,437.57. They prayed that the development company be held indebted to Per-due & Co. in the sum last stated absolutely, without offset, and not subject to any counterclaim of the Southern Development Company.

The case being at issue, .testimony was heard.

Plaintiffs proved their claim against Per-due & Co.

Argument was then heard, and the papers were taken by the court for consideration of the issues.

After the case had been closed the garnishee filed a motion asking that the case be reopened, in order to enable it to offer the contract entered into between the Perdue •Company and the Southern Development Company, alleging that there was ambiguity in the answer which it desired to explain.

The trial judge declined to grant the application and overruled the motion.