Sargeant v. Daunoy , 14 La. 43 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

The plaintiff, a plasterer by trade, who was employed by Charles Clark, to do the plastering in a house which he .had ■undertaken to build for the defendant, presented to the defendant an order from Clark, authorizing her to retain five hundred dollars out of the second payment due to him, to be paid to the plaintiff when the plastering should be finished, and a further sum of seventeen hundred dollars to be retained out of the third payment, and paid to the plaintiff when the house should be entirely finished.

This order was accepted in writing, on the 30th December, 1837.

By the contract made between the defendant and Clark, the house was to have been delivered on the 17th of May, 1838. On the 18th of May, the house was destroyed by fire.

It appears in evidence, that a change was made in the contract, by agreement between the defendant and Clark, and that the work on the house was stopped by order of the defendant, in the month of February ; at this time the house could have been finished according to the contract, in six weeks. The whole work of the plaintiff was done at that time, with the exception of two rooms, for which allowance has been made in the judgment of the court below. The day before the defendant stopped the work, she acknowledged to the master carpenter that she was the security to the plaintiff for two thousand two hundred dollars, which she was willing to pay when due.

The defendant had no power to change her obligations towards the plaintiff, by altering her contract with Clark, to which the plaintiff was privy, and in reference to which he expended his labor. If they thought proper to make a new contract, and dissolve the former one, the plaintiff, on every principle of justice, ought to be paid. It is true that the plaintiff was to be paid when the house should be finished ; but the defendant had no right to prevent its being finished at lhe lime stipulated in the contract.

We have no evidence before us which induces us to believe that the house would not have been finished at the time mentioned in the contract, if the original plan had not been changed, and the work not interrupted by the defendant.

We consider that the non-fulfilment of the contract is to be attributed to the acts' of the defendant, and that the plaintiff’s claim for his labor expended on the faith of it,' ought not to be impaired thereby.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.