U. S. Fidelity & Guaranty Co. v. Houlton

Louisiana Court of Appeal

U. S. Fidelity & Guaranty Co. v. Houlton

123 So. 415, 11 La. App. 303, 1929 La. App. LEXIS 637

CourtLouisiana Court of Appeal

DecidedJune 28, 1929

DocketNo. 490

StatusPublished

Cited by3 cases

This text of 123 So. 415 (U. S. Fidelity & Guaranty Co. v. Houlton) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

U. S. Fidelity & Guaranty Co. v. Houlton, 123 So. 415, 11 La. App. 303, 1929 La. App. LEXIS 637 (La. Ct. App. 1929).

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Opinion

ELLIOTT, J.

This is a suit to recover $881.96 as additional premium on a contractor’s bond given pursuant to the requirements and provisions of Act 49 of 1910, par. 5.

The bond is for $50,058.25. A premium of $1,502.74 was paid by defendant at the time the bond was signed. The premium paid is all that can be. asked for on account of the bond signed, unless there came about increased liability under it. The application for the bond contemplates that there may be increased liability for extra and additional work under certain conditions. The plaintiff alleges additional work to the extent of $58,797.48 done under the contract, and that its liability as a bondsman was correspondingly increased, resulting in its right to an additional premium in the amount stated.

It is not necessary to state the grounds of defense, for the reason that we find the ecord is evidently incomplete.

We find that it bears no certificate at all from the clerk of court that it is complete or otherwise. There was mention made during the argument that this record was not complete, but there was no motion to dismiss, and we therefore did not interfere at the time, supposing that the case could be decided on the record as brought up.

We now find that it cannot be done.

[304]*304There was evidently some evidence introduced by the plaintiff which has not been brought up, and which we feel may, be determinative of the case.

It was the duty of the defendant, appellant, to bring up all the evidence, a complete record showing all the facts in. the case in such a way that same could be reviewed, but this has not been done.

The failure to do so is attributable to the fault and neglect of defendant and appellant.

For these reasons, the appeal is dismissed.

MOUTON, J-. not participating.

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ELLIOTT, J.

This is a suit to recover $881.96 as additional premium on a contractor’s bond given pursuant to the requirements and provisions of Act 49 of 1910, par. 5.

The bond is for $50,058.25. A premium of $1,502.74 was paid by defendant at the time the bond was signed. The premium paid is all that can be. asked for on account of the bond signed, unless there came about increased liability under it. The application for the bond contemplates that there may be increased liability for extra and additional work under certain conditions. The plaintiff alleges additional work to the extent of $58,797.48 done under the contract, and that its liability as a bondsman was correspondingly increased, resulting in its right to an additional premium in the amount stated.

It is not necessary to state the grounds of defense, for the reason that we find the ecord is evidently incomplete.

We find that it bears no certificate at all from the clerk of court that it is complete or otherwise. There was mention made during the argument that this record was not complete, but there was no motion to dismiss, and we therefore did not interfere at the time, supposing that the case could be decided on the record as brought up.

We now find that it cannot be done.

[304]*304There was evidently some evidence introduced by the plaintiff which has not been brought up, and which we feel may, be determinative of the case.

It was the duty of the defendant, appellant, to bring up all the evidence, a complete record showing all the facts in. the case in such a way that same could be reviewed, but this has not been done.

The failure to do so is attributable to the fault and neglect of defendant and appellant.

For these reasons, the appeal is dismissed.

MOUTON, J-. not participating.

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123 So. 415, 11 La. App. 303, 1929 La. App. LEXIS 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/u-s-fidelity-guaranty-co-v-houlton-lactapp-1929.

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