And, since the special defense herein set up could not be urged by contractor, it follows that neither can it be urged by the surety on the contractor's bond. Shreveport Mut. Building, Ass'n v. Whittington, 141 La. 41, 74 So. 591; American Creosote Works v. Aetna Casualty Surety Co., 167 La. 601, 120 So. 21; Madison Lbr. Co. v. Bachemin et al., 166 La. 1066, 118 So. 141; Haynesville Lbr. v. Casey, 165 La. 1065, 116 So. 559; Fidelity Homestead Ass'n v. Kennedy Anderson, 158 La. 1059, 105 So. 64; Audubon Homestead Ass'n v. Stef Lbr. Co., 158 La. 1054, 105 So. 62; Truscon Steel Co. v. B. T. Const. Co., 170 La. 1083, 129 So. 644. II.
They stress that point here because the latter act provides that a surety is limited to such defenses as the contractor can make, and it has been held repeatedly by this court in construing statutes containing similar clauses that it is not necessary for such claimants to file liens and serve notice on the owners in order to recover against the surety. Shreveport Mut. Building Ass'n v. Whittington, 141 La. 41, 74 So. 591; American Creosote Works v. Ætna Casualty Surety Co., 167 La. 601, 120 So. 21; Madison Lbr. Co. v. Bachemin et al., 166 La. 1066, 118 So. 141; Haynesville Lbr. Co. v. Casey, 165 La. 1065, 116 So. 559; Fidelity Homestead Ass'n v. Kennedy Anderson, 158 La. 1059, 105 So. 64; Audubon Homestead Ass'n v. Stef Lbr. Co., 158 La. 1054, 105 So. 62; Truscon Steel Co. v. B. T. Const. Co., 170 La. 1083, 129 So. 644. Therefore, if Act No. 232 of 1916 was repealed by Act No. 298 of 1926, the surety in this case has no defense under the above-cited cases.
It is now well settled that the furnisher of material for a building is not required to record his claim nor to serve it on the owner in order to preserve his right of action against the contractor's surety. Madison Lbr. Co. v. Bachemin, 166 La. 1066, 118 So. 144, and authorities therein cited. Counsel for the appellee admit that this is so, but they earnestly argue that the rule stated is inapplicable to this case, which is one wherein the materialmen, who failed to record his claim or to serve it on the owner or to intervene in the concursus proceeding, seeks to recover on the contractor's bond after it had been canceled by a judgment of court.
Neither the failure of the owner to record timely the contract and bond nor the failure of the furnisher of labor and material to preserve his lien against the property, can deprive him of his action against the surety on the bond. Act No. 298 of 1926, §§ 7, 14; Audubon Homestead Association v. A. Stef Lumber Co., 158 La. 1054, 105 So. 62; Madison Lumber Co. v. Bachemin, 166 La. 1066, 118 So. 141. 2.
It is now settled by repeated decisions of this court that a materialman is not required to record his claim or to serve it on the owner of the property in order to preserve his right of action against the surety on the contractor's bond. Madison Lbr. Co. v. Bachemin, 166 La. 1066, 118 So. 141, and authorities therein cited. And the court has applied the principle of law announced in those decisions to a case arising under the provisions of Act 224 of 1918.
A furnisher of material is not required to record his claim to preserve a right of action against the surety. Madison Lumber Co. v. Bachemin, 166 La. 1066, 118 So. 141 (1928). Ergo, Brown argues, the claim against the owner is not extinguished.
It is now well settled that the materialman is not required to record his claim to preserve his right of action against the surety on the contractor's bond. American Creosote Works v. Aetna Casualty Surety Co., 167 La. 601, 120 So. 21; Madison Lumber Co. v. Bachemin, 166 La. 1066, 118 So. 141."