Tranchina v. Kramer

6 Teiss. 171, 1909 La. App. LEXIS 57

• Court: Louisiana Court of Appeal
• Decided: February 24, 1909
• Docket: No. 4704
• Status: Published

Opinion

DUFOUR, J.

This is an appeal from a judgment sustaining an exception of no cause of action to a petition making substantially the following allegations:

February 24th, 1909.

Tranehina, an owner,, entered into a building contract with Kramer, a contractor, and failed to exact from the latter a bond in accordance with the provisions of Act 134 of 1906.

Various material men made demand on Tranehina for materials used in the building, and a creditor of Kramer attached me funds due him by Tranehina.

Thereupon the latter filed a concursus proceeding citing all claimants, asserting his own claim for demurrage, and depositing in the registry of the court the balance conceded by him, to be coming to Kramer.

Exceptor's eiaim is that, under the circumstance, the statute fixes a direct personal liability on the owner and does not grant the right to a concursus.

In Ridgly Bros. vs. Linn, No. 4472 of our docket, in interpreting Act 134 of 1906, we said:

“JLf, however, the owner has failed to exact a bond, or, if having attained a bond from the contractor, he has failed to record same, the owner shall be, deemed in default and shall be liable to the same extent as the surety (,on the bond of the contractor) would have been. The extent of the surety’s liability as expressed by the second paragraph of this section is the true and xaithful performance of the contract and the payment of ail sub-contractors, workmen, mechanics and furnishers of materials. ’ ’

• Paragraph 4 of Section 1 of the Act contemplates a con-cursus only when a bond has been given, and there is, hence, no statutory warrant for such interpleader where no bond has been given and the owner’s liability under the law has become absolute.

Equity does not sanction the view that a claimant to whom the Taw gives a direct recourse on the owner, who has not given bond, and is legally at fault, should be relegated for relief to a fund and be made to bear the expense and possible loss resulting from litigation with numerous other claimants.

The exception of no cause of action was properly maintained.

Judgment affirmed.