4 La. Ann. 97 | La. | 1849
The judgment of the court was pronounced by
The plaintiff’s testator contracted with Wilis for the erection of a house for §7,900, to be paid in six instalments. The fifth instalment was made payable when the plastering should be completed. The house was to be finished and delivered on the 20th September, 1847, under a penalty of §50 per week during the delay. The house was never completed by Wills. He became insolvent, acknowledged his inability to proceed with the contract, and was formally put in default, on the 25th November, 1847. The plaintiff then proceeded to have the buildings finished at her own expense, which was accomplished on the 8th January. The plastering was not entirely finished until about the 1st December. The plaintiff, however, paid Wills the fifth instalment as early as the I6th November.
The principal question presented is, whether the appellees, three workmen who notified the plaintiff under the act of 1844 before the plastering was finished, can treat the payment as “anticipated” within the meanining of the law, and hold the plaintiff liable to them accordingly.
If Wills had continued the performance of the contract, and had not finished the plastering before the appellees notified their claims, the anticipated payment would clearly have been void, and against them. Has the plaintiff's been relieved from responsibility by the fact that Wills subsequently failed to perform the contract.
The object of the statute of 1844 was to enable the creditors of the con»
As, therefore, we believe the object of the law was to secure to the creditors1 of the contractor the' benefit of whatever the proprietor might justly owe him By reason of the undertaking, as the-plaintiff paid unseasonably, which the law’ forbids; and'as the appellees gave notice before the period-arrived when Wills' had a right to receive, the consequences of her imprudence must be borne by-her and not by the creditors.
The appellant complains that the costs of the suit were charged to her, and' that they ought to have been charged to the fund. If she hnd deposited in-court what she was bound to pay, she would have been entitled to such an ex-emption. But she alleged herself to be liable for only $281 50, and the result of the litigation shows her- to be liable-for a larger sum.
There was error in so much of the judgment as decreed a privilege in favor of the appellees. Under the act of 1844-, as well as under the Code, they are only entitled to the same privilege as-the contractor had. But Wills had no privilege, for his contract was not recorded". See act of 1844, s. 4. Civil Code, 2743, 2744, 2746, 3239. Taylor v. Crain, 16 La. 292. They must rank as ordinary creditors of the succession.
It is, therefore, decreed that so much of the judgment of the District Court as grants the appellees a privilege be reversed; and that, in other respects, the said judgment be affirmed; the said appellees James McQuaid, A. Curtis and Robert Daley paying the costs of this appeal.