Marsiglia v. McKee , 1928 La. App. LEXIS 111 ( 1928 )

CLAIBORNE, J.

This is a suit of materialmen against the contractor, McKee, and his surety, the American Surety Company.

There was judgment in favor of the materialmen against tbe contractor and bis surety.

Tbe surety has appealed.

Its defense is that there is no showing that the materials were delivered at tbe site of tbe buildings, nor that they went into the building.

In the case of Graphic Arts Building Co. vs. Union Indemnity Co., 163 La. 1, 111 South. 470, the Court decided that a surety on a contractor’s bond is limited tq defenses that can be made by the contractor in suits for materials furnished him. “Materialmen may recover against surety for material specially manufactured for building, though one-third of materials was used elsewhere by contractor.”

This decision was followed by tbe Court of Appeal for the First Circuit in Thibodeaux vs. Globe Indemnity Company, 6 La. App. 380. Tbe defense was “that plaintiff cannot recover because be has failed to prove that the materials were actually used in the erection of tbe buildings.” The Court said that the contractor could not defend upon the ground that he had not used tbe materials in tbe building; therefore neither could tbe surety, quoting tbe case of Graphic Arts Building cited above. We are bound by tbe opinion in tbe last case and cannot decide in opposition to tbe Court of tbe First Circuit.

But tbe trial court rendered judgment in favor of Scbill and of Hortman who have already been paid.

This inadvertence must be corrected.

It is therefore ordered that the judg* ment herein be amended by reversing tbe two judgments in favor of Hortman and Co., Inc., for $229.35 and $1.50 and in favor of Ellie H. Schill for $522' and $2.00, and as thus amended that the judgment herein be affirmed.