Mulligan v. Mulligan

| La. | Jan 15, 1866

Lasauve, J.

The plaintiff claims of;the defendant the sum of $2,010, -with interest; for this : that, in November or December, 1857, Ellen •Sheridan, know in religion by the name of Sister Theresa, Superioress of the Society of St. Vincent de Paul, and others, undertook to erect a hospital in this city, under the name of Hotel Dieu, and made arrangements with said Daniel Mulligan for the building, of said hospital; it being understood at the time that petitioner should have the supervision of, and give his professional attention to the erection of said building, either in the capacity of partner or as sole-superintendent; that petitioner gave his attention as architect and builder to the erection and construction of said building during one year, three months and fifteen days, at the rate of five dollars per day, exclusive of Sundays.

The defendant answered by a general denial. The District Court, after hearing the testimony, gave judgment in favor of plaintiff for $1,905, without interest, with mechanic’s privilege on the money seized in the hands of Sister Theresa.

The defendant appealed.

The testimony shows that plaintiff was generally present at the work and erection of the said building, called Hotel Dieu, giving instructions to workmen and supervising the construction. It appears, then, that the plaintiff acted as superintendent; but it is not clearly demonstrated when he commenced and ended his labor, so as to allow him five dollars per day for 381 days, it being proven, by some witnesses, that five dollars per day is generally the compensation granted to superintendents of buildings. The testimony is not satisfactory in every respect, and we do not feel authorized to allow plaintiff a compensation by the day. We will adopt the testimony of John Roy and George Purves. They both state that five per cent, on the cost of the building is an ordinary charge as a compensation for a superintenden 1 < the erection of buildings. According to the contract, the cost of the building was $33,975, making a compensation of $1,698 75.

The defendant has contended that the plaintiff has no privilege or mechanic’s lien as superintendent. We are not of that opinion. The act of 1855, f 1, enacts that “ every mechanic, workman, or other person, doing or performing any work towards the erection, construction or finishing-of any building in this State, erected under a contract between the owner and builder, or other person, whether such work shall be performed as journeyman, laborer, cartman, sub-contractor or otherwise.” * * * * This law is very clear in spirit and letter, and leaves no doubt as to the intention of the lawmaker.

It is therefore ordered and adjudged that the judgment of the District Court be reversed and annulled; it is further ordered and adjudged that-the defendant and appellant pay to the plaintiff and appellee the sum of sixteen hundred and ninety-eight dollars and seventy-five cents, with legal1 interest from the 2d September, 1859, till paid, with mechanic’s privilege or lien on the money seized in the hands of Sister Theresa, the defendant to pay the costs in the District Court, and those of appeal to be by the: plaintiff.