166 So. 891 | La. Ct. App. | 1936
To secure the payment of an alleged balance of $711.28 for material and labor furnished, defendant caused to be recorded in the mortgage records of Caddo parish, La., an affidavit and written statement in which he claimed a lien and privilege on the above-mentioned leased property.
In his petition herein, plaintiff prayed that he be awarded judgment against R.O. Marks in the sum of $1,500 for the damage to his property, that defendant's recorded lien and privilege be ordered canceled and erased from the mortgage records, and that he recover further judgment in the sum of $50 as attorney's fees for obtaining the cancellation of such lien. Lessee, the Waterman Amusement Company, Inc., was not made a party to this suit.
An exception of no cause of action, as to plaintiff's demand for damages, was sustained on July 8, 1933. At the commencement of the trial of the case on its merits, counsel agreed that the only question at issue was with reference to the cancellation of the lien.
There was judgment in favor of plaintiff ordering the cancellation and erasure of such lien and condemning defendant to pay the sum of $25 as attorney's fees. Both plaintiff and defendant appealed from the judgment.
The evidence discloses that plaintiff had nothing to do with the construction of the proposed reservoir. Apparently the idea of its creation was conceived and nurtured in the brain of Mr. A.C. Waterman, lessee's president, and he alone was responsible for the attempted execution of the plan. Plaintiff's testimony that he had no *892 knowledge of the building of a reservoir until it was practically completed is in no manner contradicted. It is true that the written contract of lease inferentially authorized the making of some improvements when it stated that "Lessee agrees to take the property in the condition in which it now is and bear all expenses of improvements," but the evidence indicates and is to the effect that only minor improvements were contemplated by the parties under the provisions of the agreement. Also it is shown that plaintiff registered no complaint when he learned of the nearly completed structure. But we think that the above provision of the lease and such knowledge without complaint were insufficient to constitute Waterman the agent of plaintiff in the undertaking so as to make plaintiff and his property liable for the unpaid material and labor claims incurred by lessee.
The jurisprudence of this state is uniform to the effect that labor and material liens are stricti juris, and that the statutes creating them, being in derogation of a common right, must be strictly construed. Fowler Commission Co. v. E.J. Deas Co.,
Defendant's right to a lien and privilege is governed by the provisions of section 11 of Act No.
Obviously, defendant was entitled to a lien and privilege affecting only the lease itself and lessee's right to the use of the property. He could not have a lien against the realty itself. By reason of its own provisions, the lease expired on November 1, 1932, and, accordingly, the right of lessee to the use of the property also terminated at that time. The judgment ordering the cancellation of the recorded lien was therefore correct. Klema Realty Co. v. Fauria et al.,
However, we find that error was committed in awarding plaintiff judgment of $25 as attorney's fees, for the cancellation of the lien. There is no evidence in the record showing malice on the part of defendant in filing or recording the affidavit asserting a lien and privilege. The law is settled that, unless it is shown that the lien claimant acted maliciously in this regard, there can be no recovery. Flournoy v. Robinson-Slagle Lumber Co.,
For the foregoing reasons, it is ordered, adjudged, and decreed that the judgment be amended by rejecting plaintiff's demands for attorney's fees. In all other respects the judgment appealed from is affirmed. Plaintiff shall pay the cost of the appeal.