24 La. Ann. 442 | La. | 1872
A motion has been made to dismiss the two appeals taken herein, the one by Lee, Markey, Carré & Co. and Powers & Dunn,.and the other by Charles Donnelly, on various grounds, which ■are reducible, however to two, viz-.:
First — That the amount involved does not exceed $509; and
Second — That all the parties to the judgment have not been made parties to the appeal.
The amount involved in the case, as between the plaintiff and Thiberge, exceeds two thousand dollars. The appellants were made parties defendant for the purpose of settling their claims upon the fund due from plaintiff to Thiberge; and although the claims of some are less than five hundred dollars, yet we think they are all entitled to ■appeal, being parties to a dispute in which an appealable amount is at stake.
As to the question of parties, the appeal of Donnelly is valid, having been taken by motion in open court with a bond in favor of the clerk. The fact that he deemed this method irregular, and afterward took an •appeal by petition and failed to have all parties cited, can not prejudice him, for the motion of appeal was correctly made, and his rights •can not be destroyed by his want of faith in their existence.
As to the appeal taken by Lee and others, it appears that some parties have not been cited; but we are not disposed under the facts ot the case to attribute the blame to the appellants. They prayed for -citation in such form as to make it the duty of the clerk to attend to ■the matter. The motion to dismiss is overruled, and
It is ordered that the appellants Lee and others have until the first Monday of November, 1870, to cause the proper parties to be cited.
This is an action by a proprietor, under a building contract, against the contractor; his surety and several unpaid subcontractors and furnishers of materials, etc., to settle the rights of the
The only error we discover in the judgment is in allowing the penalty of thirty dollars per day for the delay in completing the contract, and the erasure of the privilege to the prejudice of the appellants for their proportion of the unpaid installment of the price, $3357 50.
The evidence satisfies us that the delay resulted principally from the tardiness of the plaintiff in having the party wall, which was unfit for use, rebuilt in time for the contractor to complete his work. This old party wall was, by the terms of the contract, to be used in constructing the new building without cost to the contractor, and when' the old building was torn down the said wall was found unsafe and unfit, was condemned by the proper city authorities, and the contractor was forbidden to use it. The plaintiff was duly notified, but this ■wall was not rebuilt until it was too late for the erection of the plaintiff’s building within the time. This was a “lawful excuse” for the non-performance of the principal obligation within the stipulated time. R. C. C. 2120, 2122. It is the first and not the second clause of the latter article that is applicable to this case. The contract was to build the house by a certain day, and if it was not then built the contractor was to pay thirty dollars per day until it was completed. But the plaintiff contributed mostly, if not entirely, to this delay, and she is not in a position to enforce the penal clause.
The judgment seems to be final as to the contractor and those* of his creditors under the contract who have not appealed, and the amount, $1915 45, remaining in the proprietor’s hands out of the unpaid installment after completing the building, not being enough to satisfy the whole of the claims of the appellants, must be distributed ratably among them. The allowance of interest on the distribution will not change the amount to be received, and is therefore omitted in the calculation.
The appellants are not, under the evidence, entitled to judgment against the plaintiff for the whole amount of their respective claims. But as they ask it against the defendant Thiberge, the contractor, it, will be allowed to avoid a multiplicity of actions.
It is therefore ordered that the judgment appealed from be reversed, as to the appellants herein only, and it is now ordered ■that the plaintiff Margaret Haughery be. condemned to pay to the.
It is finally ordered that in other respects the judgment appealed, from remain undisturbed.