#### REILY BROTHERS, INCORPORATED v. DICON, INC., the Mitchell Corp., Singer Housing Company, and Travelers Indemnity Company.

No. 11736.

Court of Appeal of Louisiana, First Circuit.

Dec. 28, 1977.

Rehearing Denied Feb. 13, 1978.

*652John N. Gallaspy, of Gallaspy & Paduda, Bogalusa, for plaintiff.

France W. Watts, III, of Watts & Cassi-dy, Franklinton, for defendants.

Before LOTTINGER, EDWARDS and PONDER, JJ.

EDWARDS, Judge.

Dicon, Inc. and Travelers Indemnity Company appeal a judgment of the trial court in favor of Reily Brothers, Inc., which recognized a materialmen’s lien in the amount of $12,030.53, together with the cost of filing the lien and interest from date of judicial demand. The appeal is presently before us both on a motion to dismiss and on the merits.

ON THE MOTION TO DISMISS

On October 31, 1977, Reily Brothers, the appellee, filed a motion to dismiss, contending that the judgment herein was not final at the time the order of appeal was signed, and consequently, the appeal was premature and should be dismissed.

We find no merit in this contention.

The trial court rendered judgment in this suit on March 21, 1977 and notice of judgment was sent on March 22,1977. A timely application for a new trial was filed on behalf of Dicon and Travelers on March 28, 1977. A hearing on the motion for a new trial was held on May 9,1977, at which time the trial court denied the motion as reflected- in the Extract of Minutes. Dicon and Travelers filed an Order for Appeal and an Appeal Bond on May 27, 1977. On August 5,1977, the trial judge signed a formal written judgment denying their motion for a new trial.

The- delay for perfecting a suspensive appeal begins, in cases such as the present where a timely application for a new trial has been filed, from the date of the trial court’s refusal to grant the motion. LSA-C.C.P. article 2123.

The refusal to grant a new trial is an interlocutory order or judgment, and consequently there is no requirement for a signed written judgment. *Simon v. Lumbermans Mutual Casualty Co.,*138 So.2d 465 (La. App. 3rd Cir. 1962).

Therefore the delay for perfecting a suspensive appeal began when the motion for a new trial was denied in open court on May 9, 1977. See *Caston v. Argonaut Ins. Co.,*244 So.2d 320 (La. App. 1st Cir. 1970).

The appeal perfected on May 27, 1977 was therefore timely and was not premature.

Accordingly, the motion to dismiss is denied.

ON THE MERITS

The record indicates that on May 10, 1974, Dicon entered into a building contract, as general contractor, for the construction of a shopping center in Bogalusa. Travelers issued a performance bond to Di-con. The contract and bond were thereafter filed in accordance with LSA-R.S. 9:4801 et seq.

Plaintiff, Reily Brothers, is an electrical supply company in New Orleans and from October 1974 until January 1975, it furnished electrical fixtures and materials to Dicon for use in the construction of the shopping center. Some of these materials were furnished under written purchase orders, while others were supplied in response to verbal orders placed by Dicon’s project manager, R. L. Tucker. All the materials supplied by plaintiff were ordered and shipped from the respective factories directly to the construction site. Plaintiff received invoices and bills of lading from the various factories, paid these invoices, and in turn billed Dicon for the materials.

*653Bernard J. Slutsky, plaintiff’s contract department manager, testified that they did not have signed delivery receipts for the materials because they had been shipped directly from the manufacturers. However, he testified that the bills of lading were evidence that the materials had been shipped. He further testified that prior to trial he had conducted an inspection of the shopping center; and had observed and counted electrical fixtures conforming in quantity and description to those on the disputed invoices.

Robert Ramsey, Dicon’s president, testified that he refused to pay the invoices because Reily Brothers could not furnish signed delivery receipts for the disputed materials.

On April 10, 1975, plaintiff filed a lien in accordance with LSA-R.S. 9:4801 et seq. against the property in question.

The shopping center construction was accepted by the owners on June 22, 1975.

Reily Brothers instituted this suit on March 31,1976 against Dicon and its surety, Travelers. The owners of the property are not parties in this suit.

The trial court found that plaintiff, though it could not present signed delivery receipts, had amply proven by competent circumstantial evidence, especially the testimony of Slutsky, that the disputed materials had in fact been delivered to Dicon at the construction site.

Dicon and Travelers urge that the trial court erred in two respects: 1) in overruling their exceptions of no cause of action, no right of action and prescription; and 2) in holding that there was sufficient proof that the disputed materials were delivered to the construction site.

Dicon and Travelers contend in their peremptory exceptions that plaintiff’s failure to serve the sworn detailed statement of its claim on all the owners of the shopping center violates LSA-R.S. 9:4802. They argue that the lien is therefore invalid and that Reily Brothers cannot maintain this suit.

We are unable to find any case in which the validity *vel non*of a lien is determined based on whether or not a claimant has served his claim on one but not all the owners of the subject property. However, we need not reach this issue since the filing of the sworn statement of account on the owner is not a condition precedent to a right of action by the furnisher of materials against the contractor and surety. *Shreveport Mutual Building Ass’n v. Whittington,*141 La. 41, 74 So. 591 (1917). Compare *Haynesville Lumber Co. v. Casey,*165 La. 1065, 116 So. 559 (1928).

We find that there is no merit to appellants’ exceptions of no cause of action and no right of action. We also find that the exception of prescription is equally unfounded as the instant suit was instituted within a year of (both the filing of the lien on the property and) the acceptance of construction. Therefore the action was not prescribed. See, LSA-C.C. article 3544 and LSA-R.S. 9:4814.

On the issue of delivery, Dicon and Travelers rely heavily upon the decision in *Jahncke Service, Inc. v. Foret,*139 So.2d 554 (La. App. 4th Cir. 1962) to support their contention that Reily Brothers cannot prevail absent the production of signed delivery tickets.

We do not find that *Jahncke*supports this contention. The Court in *Jahncke*stated at page 557:

> “All that the furnisher of materials to be used under a contract for private construction is required to do, in order to collect from the contractor and his surety, is to show by competent proof that the material was delivered to the job site. . "

We find that plaintiff in the instant case has met this burden of proving delivery through the testimony of Slutsky, who testified regarding the various invoices and his personal inspection of the shopping center. We believe, as did the trial court, that this evidence, though circumstantial, amply proves that the disputed materials were supplied by Reily Brothers and delivered to Dicon at the construction site.

*654For the above reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

PONDER, Judge,

dissenting in part and concurring in part.

I concur in part and dissent in part. The judgment granted the amount of the claim, the costs of filing the lien and interest and costs. It also enforced the lien and made it executory.

I find no difficulty with the refusal of the motion to dismiss and the finding that the materials had been delivered.

By exceptions of no right of action and no cause of action, Dicon and Travelers contend that plaintiff’s failure to serve a detailed statement of the claim on all the owners violates LSA-R.S. 9:48021 which precludes plaintiff’s maintaining this suit against the surety and contractor.

Service on one of the co-owners was disputed. Admittedly, service on the other co-owners was never made.

LSA-R.S. 9:4814 A. and B. states:

> “A. Except as provided in Subsection C of this Section nothing in this Subpart shall be so construed as to deprive any claimant of his right of action against the surety signing and bond furnished in connection with any building contract or subcontract, or against the principal obligor thereunder, which right of action against such obligor and the said surety shall accrue at any time after maturity of the claim of the said claimant.

> “B. Before any suit is instituted against the surety prior to the registry by the owner of his acceptance of the work, or of the notice of default, such claimant shall record his claim as provided in R.S. 9:4802, and shall serve a copy of the said claim, in the form and in the manner prescribed in R.S. 9:4802, on both the owner and the surety and provided that no suit shall be filed against the surety until thirty days after such service. Any action against the surety must be brought within one year from the registry of acceptance of the work or of notice of default of the contractor. When claimants shall not have preserved their privileges and shall afterwards bring a direct action against the surety, they shall have priority as between themselves after payment of all recorded claims against the balance for which the surety is liable in the order of the filing of their respective suits.

> * * ‡ H

This article obviates any necessity of filing a lien against the property “. . .as a prerequisite to the recovery of a personal judgment against the contractor and his surety.”2 The only limitation is the requirement that the claim be a “lienable” one.3

The requirement of Paragraph B, service of the claim on the owner and surety, is applicable only when suit is instituted prior to acceptance or notice of default. The present suit was instituted long after acceptance by the owner. Therefore, I see no merit to the exceptions.

However, since service was not made on at least one-half of the ownership interest in the property, and since the co-owners were not even made parties to this lawsuit, I do not believe the lien should be recognized and made executory. Furthermore, defendants filed a lien release bond which had the effect of releasing the lien.4

*655I therefore concur in the result affirming the Trial Court’s overruling the exceptions and dissent to the affirmance of enforcing the lien and making it executory.

1

. LSA-R.S. 9:4802

> “ * * * Every person having a claim against the undertaker, general contractor, . shall serve upon the owner a sworn detailed statement of his claim .

2

. *Apex Sales Co. v. Abraham,*201 So.2d 184 (La. App. 4th Cir., 1967).

3

. *Arrow Construction Co., Inc. v. Am. Employees Ins. Co.,*273 So.2d 582 (La. App. 1st Cir., 1973).

4

. LSA-R.S. 9:4841

> “When any contractor shall have entered into a contract to perform private works under the laws of this state governing the letting and awarding of such contracts and in conformity with the requirements thereof, the contractor *655shall have the right to bond any claim or claims which may be filed or recorded against the said work by depositing with the clerk of court of the parish in which such claims are filed or recorded a bond with surety signed by any surety company authorized to do business in the state for an amount equal to the claim plus one-fourth. The bond shall be approved by the clerk of court conditioned that in the event the legality of such claim or claims is established by suit or otherwise, the bond shall remain in full force and effect to protect the interest of the claimant in the premises.”