Neith Lodge, No. 21, I. O. O. F. v. Vordenbaumen

Citations

• 111 La. 213
• 35 So. 524
• 1902 La. LEXIS 176

Syllabus

<p>BUILDING CONTRACT—BOND OF CONTRACTOR-LIABILITIES—PRESCRIPTION—APPEAL—REVIEW.</p> <p>1. The plaintiff entered into a contract with a builder for the construction of a building. The contractor executed a bond, with Vordenbaumen as his surety, that the contractor should pay all workmen, laborers, and mechanics, and all those who furnished supplies and materials actually used in the building. The firm of Vordenbaumen & Eastham, of which Vordenbaumen was a partner, furnished-materials, and, not being paid, served upon the owner, then owing money to the contractor, an attested account, as required by statute. The firm then brought suit and recovered judgment against the owner. The latter paid the judgment, and brought suit against the surety on the bond.</p> <p>Held, this demand was not well founded. The service of the account and the judgment of court had the effect of a seizure of money. The subsequent payment of the firm’s claim was, in legal contemplation, through the owner, a payment of this debt, by the contractor himself, out of his own funds in the hands of the owner.</p> <p>On Rehearing.</p> <p>2. In matter of a contractor’s bond for the faithful execution of his contract as builder, and to secure laborers and materialmen, the principal, in accordance with the terms of the bond, is bound for the faithful execution of the builder’s contract; also that he (the principal) will comply with the special statute (Act No. ISO' of 1894, p. 223).</p> <p>The bond contains dual obligations, one protected by general law, and the other to insure performance of the contractor under the special statute.</p> <p>3.Had the contractor complied with the terms of his bond, the plaintiff, in whose favor it was executed, would not have had to defend a suit brought by a firm of which the surety is a member, nor to pay costs and interest.</p> <p>Failure of the contractor to pay the amount due to the firm of the surety was a violation of the condition of the bond, and thereby the surety