Templeman Bros. Lumber Co. v. Sinnot

Citations

• 9 Teiss. 305
• 1912 La. App. LEXIS 74

Syllabus

<p>T. 'The principal when sued may call his surety in warranty notwithstanding a lack of privity between the latter and the plaintiff.</p> <p>.2. Where the owner, sued by a material-man to enforce the personal liability imposed by Act 134 of 1906 for his failure to record the security in favor of workmen and furnishers of material as required by the Statute, calls the surety on the contractor’s bond in warranty, the call in warranty is not premature if all claims as between the owner, contractor and material-men are undisputed.</p> <p>3. The failure of the owner to record the bond required by Act 134 of 1906, does not discharge the surety.</p> <p>4. Every means of defense, such as payment, release, etc., which tends to the extinguishment of an obligation admitted or proved to have once existed, must be specially pleaded and cannot be urged under the general issue.</p> <p>5> Evidence received without objection does not enlarge the issues when otherwise admissible under the pleadings.</p> <p>6. A judgment which recites that it was rendered upon a consideration of the evidence adduced is presumed to have been based upon sufficient evidence to support it, though none be found in the transcript, which is affirmatively shown to be incomplete.</p> <p>7. No proof is required to support a claim of attorney’s fees for Services rendered in the presence of the Court.</p> <p>8. By not insisting upon the trial of an exception before the cace is tried upon the merits, the parties are presumed to have waived the exceptions.</p>