175 So. 2d 337 | La. Ct. App. | 1965
Lead Opinion
Plaintiff, J. J. Clarke Company, Inc., instituted this suit against the defendants, the Housing Authority of New Orleans; Pittman Construction Company, and Massachusetts Bonding and Insurance Com
The defendants answered and denied that they are liable to the plaintiff for the amount sought to be recovered by him.
Various cross-pleadings were also filed by the litigants, including a third party petition by Pittman and its sureties against Miller and his surety for any amount which it may be required to pay Clarke emanating from their vicarious liability under the Public Works Statute.
Clarke moved against Pittman for a summary judgment, which was granted. In addition thereto, a motion for summary judgment by Pittman against Miller was severed from the Clarke proceeding against Pittman, and it, together with all other such claims, for obvious legal reasons, was consolidated with another suit by Miller against Pittman and its sureties, entitled, “Charles X. Miller v. Housing Authority of New Orleans, et al.”, 175 So.2d 326. In that case, the plaintiff, Charles X. Miller, sued the Pittman Construction Company and its sureties, together with the Housing Authority of New Orleans, to recover a 10% retainage on a subcontract from Pittman for lathing and plastering work executed by him as a subcontractor in the Desire Street Housing Project.
For the reasons assigned therein, the judgment of the lower court is amended as delineated in the decree attached to the opinion in the consolidated suit, and as amended, the judgment is affirmed.
Amended and affirmed.
Rehearing
ON APPLICATION FOR REHEARING
In its application for rehearing, the Pittman Construction Company has pointed out that the decree in the original opinion herein refers to the deduction from Miller’s re-tainage of “the judgment rendered in favor of August A. Weggmann, Receiver of J. J. Clarke Company, Inc., ($5,408.68)”. Pittman asserts that this decree, as drawn, may lead to a misunderstanding, since the judgment in favor of Clarke’s receiver was not only for the principal amount of $5,-408.68, but also for legal interest thereon from April 14, 1960, until paid, together with 10% thereof as attorney’s fees and court costs.
Pittman merely requests that it be made whole to the extent of the amount it was required to pay to Clarke’s receiver, or the amount of $7,108.14, and is willing to accept a judgment providing for deduction of that amount from Miller’s retainage, thus waiving recovery of any interest on its payment of $7,108.14.
An examination of the judgment in the Clarke suit reveals that Pittman’s contention is correct and that it is entitled to recover the principal amount plus interest, attorney’s fees, and costs. Consequently, the original decree rendered in this proceeding is hereby amended by omitting “($5,408.68)” therefrom in conformity with this applicant’s request.
In addition thereto, the original decree is amended by granting to Pittman legal interest from date of judicial demand on the sum of $742.57, representing the costs incurred by it for bond premiums to remove liens improperly recorded by Miller.
All applications for a rehearing are denied.
Rehearing denied.