Arcadia Lumber Co. v. Austin
Also decided on this docket: La. Ct. App. 1st Cir., May 10, 1972 262 So. 2d 156; La. Ct. App. 1st Cir., March 22, 1954 71 So. 2d 381; La. Ct. App. 1st Cir., December 3, 1906 4 Teiss. 102; La. Ct. App. 5th Cir., May 14, 1906 3 Teiss. 379; La., March 15, 1872 24 La. Ann. 169
Arcadia Lumber Co. v. Austin, 131 So. 601 (La. Ct. App. 1st Cir. 1930).
Cited by
- Apex Sales Company v. Abraham 201 So. 2d 184 La. Ct. App. 4th Cir. 1967
- Myers v. Maricelli 50 So. 2d 312 La. Ct. App. 1st Cir. 1951
- Dixie Bldg. Material Co. v. Mertz 141 So. 791 La. Ct. App. 1st Cir. 1932
- Bloomenstiel v. McKeithen 139 So. 519 La. Ct. App. 1st Cir. 1932
Opinion text
ON THE MERITS Defendants deny that the original obligor was indebted to plaintiff in any amount, and allege that the original obligor, S. B. Sutton, during the time of the erection of the building, sold plaintiff materials amounting to the sum of $319.65, also two wheel-harrows, at $22, and a secondhand screen, worth $3.50. They also deny that the said S. B. Sutton purchased certain items as. shown by the itemized account filed by plaintiff. The items of $22, for wheelbarrows, and $3.50, for the screen, claimed to have been sold to plaintiff, have been abandoned by defendants, and they rest their defense on the theory that the contractor, Sutton, did not purchase the doors, windows, some brick, and a few other items from plaintiff and that they did not go into the building. The preponderance of testimony, however, is that all the items shown on the account filed were purchased for this particular building by the contractor, Sutton, and were ordered delivered at that place. The lower court, who heard the witnesses testify, so held, and we are not disposed to disturb his finding in that respect. The amount of $319.65 is pleaded in compensation and offset by the defendants. The amount is pleaded in globo with no attempt being .made in the answer to show what material was sold to plaintiff to make up this amount. On trial of the case, the defendants attempted to prove the items and price of each that made up the $319.65, pleaded as an offset, which testimony was objected to by the plaintiff for the reason that there was no allegation in the answer on which to base the proof; that the attempt to plead compensation and set-off is in globo; that proof of an account in globo cannot be made; and that proof of an itemized account cannot be made for the reason that there are no allegations on *216 whicli to base the proof. No itemized account had been alleged by which the plaintiff could be put on its guard as to the time and items. The evidence was heard subject to the objection. The objection should have been sustained. A plea of compensation or set-off should be set forth with the same certainty as to amounts, dates, items, etc., as though the party pleading it was the plaintiff in the suit. And when this is not done and objection is timely made, it should be sustained. The lower court held that the plaintiff had proved its account, and we think his judgment correct. Defendants complain of attorney’s fee being allowed. However, Act No. 225 of 1918 is an act fixing penalties of attorney’s fees when the claim against the sureties, etc., is not paid within thirty days after written demand is made for payment of the claim. Plaintiff made written demand more than thirty days before filing suit, and in that respect complied with the act, and is entitled to the attorney’s fees as prayed for. Act No. 298 of 1926 did not in any way repeal or alter Act No. 225 of 1918. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.