Police Jury of Point Coupee v. Smith's Syndics , 14 La. 68 ( 1839 )

Rost, J.,

delivered the opinion of the court.

The defendants sued in the alternative, in their capacity of syndics, upon a contract entered into by the plaintiffs with an undertaker, to make a levee upon a tract of land now the property of the insolvent they represent, or for the value of the labor done and expended upon the land, under said contract, pleaded the peremptory exception of the thing adjudged, and the district court having maintained the exception, the plaintiffs appealed.

The judgment pleaded in bar of the present action, decrees that the order of seizure and sale granted by the parish judge, against the land upon which the levee had been made, be rescinded and annulled, at the cost of the plaintiff, without prejudice to his rights to any other remedy to enforce his demand, except only to his right to obtain an order of seizure and sale.

The plaintiffs in the present suit do not ask for an order of seizure and sale; and they pray, that if on account of any informality they cannot maintain an action on the contract, they may be allowed to recover on the quantum meruit. It appears to us, that this action is expressly reserved by the former judgment, and if it had not been, the plea of the defendants could not have been maintained. The principles upon which the right of action rests in the present case, were settled by this court, in the case of the Police Jury vs. Hampton, 5 Martin, N. S., 389; and nothing has been shown that could make us doubt the correctness of that decision.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, the exception overruled, and the case remanded for further proceedings, the defendants and appellees paying the costs of this appeal. .