The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-02-14

L
S%. , hC *. the OF re tFd dseS,
in Court the real due by him under the contract
| Mrs. HENRIETTA ALLEN TKsTAMENrARYE EXECUTOR
Us. J. c. WILLS Appeal from the Third Dis
tret Court of Mem Orleans (Kennedy Judge. No 1861
in the Supreme Court. SLIDELL, j.. Per curtain 1.-THE
plaintiff estaor contracted with Wills for the erection Of
house for $780, to be paid in six instruments The fifth
nstament was made payable when the plaserng should be
completed The house waste be finished and delivered on
the 10th September lS47. and penalty of $50 week
The house was completed by Wills, He became
S Ss%Psi Risa, Then s,oesf$sS . have he
sRfa;s
finished until about the LIST December The plaintiff how
eyer paid Wills the fifth insalment as early as the 10Th
The principal question presented is whether the pelees
1874 before the plasteng finished treat the pay
70 them 1he the law"
sd md % the beoe o. s
fed their claims the anticipated won clearly have
been void against them Has the plaintiff been relieved
to perform the contract?
The object of the Statute of 1874 to enable the cred
ors Of the contractor TO obtain the benefit of
# contractor violates his contract after having done
portion of his work his rights by of what he has
none are not wholly The nTSpeo his default
default and legally chaIgeabe do not absorb the unpaid
have to the extent residue claim er equo ct bono for
his unpaid work In the absence Of evidence to the
benefited to that extent.
In the present the plaintiff after Wiss default fin.
shed the buildings at not exceeding the sixth
instament If therefore, she had paid the fifth install
ment she would have been bound to Wills the amount
delay as were recoverable under the contract What would
lated case Of The failure to finish the house ii septembe
Wills was put in default for hee stimulation in the
contract that he should be deemed be in efult by the
fed time See G. G. 1905, 1891 ias Ros ron 1896; Mer
lin. Dsrbc pe,ne eonraetnee; s. If deduct from the
from the date othe defasl the date of the completion of
the building, it would still leave sufficient the
stalmen the contract in full force Wills was not then
default Under the contract the instament not then
doe and the plaintiff paid in heI , By having
doing what the law in the interest Of mechanics and aboe
has forbidden she would have had hand when the appel
ices gave then notice fund sufficient to pay Them although
As therefore believe the object of the law secure
for the creditors Of the contractor the benefit of whatever the
proprietor might Justly him by of the undea
king as the plaintiff paid unseasonaby which the law for
rived when wills had sk to receive the conseqpenoes Of
her imprudence must be borne by her. and not by the
The appellant complains that the costs of this suit
and ha they ought to have been charged to
to pay she would have been entitled to such an esempon
But she aledged herself TO be liable for only 1921 80 and
the result of the litigation shows her to be liable for larger
% Of %esR S
1874 as well as under the code they are only entitled to the
fs e. s vi nst ssef Tsso sss
L Therefore decreed that so much Of the Judge
ment OF the District Court grants the appeees privilege
sfiImed the said appeees James Mcouad, Curis. and
Robe Daley paying the costs Of this appea" NJ Wray
for plaintiff and appellant; Grvot Davis Race and Foster
TITO B. eontinuedl