22 La. Ann. 149 | La. | 1870
The plaintiff, a contractor for filling with river sand the battures in front of the First District, from Canal to Calliope street, the first day ef November, 1866, at the rate of thirty cents per cubic yard, sues the city of New Orleans to recover:
First — The sum of $600, being ten per cent, op tho amount of a payment or certificate, and retained nndcr the contract as a guarantee, until the completion of the whole work.
Second — The sum of $3000, for work done between the date oí said
Third — Tlie sum of $5775 1G, damages sustained in the purchase of tools, implements, etc., to enable him to execute his contract.
Fourth — The sum of $6250, profits on the unexecuted part of his contract.
The answer is a general denial; the allegations that plaintiff neglected his work, failed to use due diligence in the completion thereof,, acknowledged his incapacity to to complete it, and that the contract was annulled by virtue of its stipulated conditions, and the work was completed by the City Surveyor, at a cost exceeding the contract by $2710 G5, which, less the $600 retained, is claimed in reconvention.
Judgment was rendered in favor of plaintiff, dismissing the reconventional demand, and for the sum of $8600, and the city appealed.
It is shown that between the date of the payment made and the first of November, there was an unusual rise in the river, which greatly interfered with the jdaintiff’s operations; that during said time he performed work to the amount of $731 40 at the stipulated price; that about the latter date the City Surveyor took charge of and finished the work at a cost as set out in the answer, and on tlie ninth of November the ordinance annulling the contract was approved. It also appears that plaintiff made two applications to tlie Common Council — one on the sixteenth of October, to bo relieved from his contract, or allowed Indemnity for loss, on the ground that his outlay exceeded his compensation, and his means were insufficient to continue under the conditions oí the contract; and another on tlio twenty-third of the same month, for an extension of forty-five days to complete the work, on the ground that the high water prevented his getting sand at the place designated by the Surveyor, and compelled him to discharge a largo portion of his laborers. It appears further, that, under the stipulated conditions, the Council could, without a putting in default and without indemnity, annul the contract, if the plaintiff failed to complete the work by the firstof November; and if he should abandon the ivork, or fail to finish it in conformity with his contract, he should forfeit all claims he may have for any part of the work done by him ■up to the date of the abandonment, and the city thereby discharged from any liability therefor; and if the contract be resold, the plaintiff and his sureties shall pay the difference between the price of the first and tliat of the second contract.
Under this state of facts the reconventional demand can not be sustained, the city not having resold the contract. Nor can the plaintiff recover the third and fourth items of his demand, which have no basis in law or equity. His right, however, to the first and second items, to the extent of the work actually performed by him, depends on the question whether or not he has forfeited them.
Now, it is true, as stated by the City Attorney, that the city did not warrant against the rise in the river, and yet it may be an accident or force which will excuse the plaintiff, the obligor, for the non-completion of his work in the time fixed, and relieve him from the forfeiture of the pay for the work done by him up to the time, at which he should have completed the whole of it. The facts of this case bring the plaintiff within the application of this doctrine.
It is therefore ordered that the judgment appealed from be reversed, and that plaintiff, John Bietry, recover of the defendant, the city of New Orleans, the sum of $1331 40, with legal interest from November 1, 1866, and that he have judgment dismissing defendant’s reconventional demand, with all costs in the lower court; costs of appeal to be paid by plaintiff and appellee.