Miller v. Brigot

Mathews, J., delivered the opinion of the court. This is a suit brought by the furnishér of materials to a builder who undertook to erect certain houses for'the defendant, in which the price or value of the materials furnished is claimed directly from the latter. The cause was submitted to a jury, a verdict was found for the defendant, and the plaintiff appealed from a judgment rendered in pursuance of the verdict. The person materials to the noaction^gainst building? °vhen he suffers the cording0 to3" his th?Ufoimer,Whe- No debtor is bound to pay a debt by portions, and no partial made°by"^crebinding* ? debtor, _ even when notice given, except by Snt?f??LueiL The proprieobligedloaccept a draft drawn on him by the undertaker, in fa-rial °iane ft?? part of a payment which is to become due, nor He may pay the whole sum to the undertaker, when it is due, or when he receives the work, vlousiyb'rought. [536] The facts of the case show, that the materials were ¿[ejivere(j to the undertaker to be used in the construction of the buildings for the defendant, and that an order or draft for the price was given to the furnisher, drawn by the former on the proprietor, to be paid out of a certain sum which was to become due to the undertaker, on the completion of his work. The drawee refused to accept the draft, which was protested, &c. On the 11th of November, 1834 the buildings were completed and delivered to the proprietor, who at that time fulfilled the obligations arising from the contract between him and the undertaker, by paying the full amount stipulated, to the latter. On the 4th of December following, the present suit was commenced. The legal questions arising out of the facts, were settled by a charge of the judge a quo, to the jury, and the correctnesg 0f thg vel-¿ict and final judgment depends on the propriety of the manner in which those questions were settled. The charge was based on the articles 2741, 2744 and 2745 of the Louisiana Code. They relate to workmen who have been employed by undertakers in the construction of buildings, and persons who furnish materials, &c. The pla-intifF is in the category of the latter, having furnished by contract with the undertaker. According to article 2744, he had no action against the owner, the latter having paid the whole sum stipulated to the undertaker ° r 1 before the institution of the present suit; and it does not appear that he paid in anticipation. The judge below was therefore correct in stating to the jury, that under these articles the plaintiff is without remedy. But it is contended , , , «in , , on his part, that the order to pay, given by the undertaker and presented to the defendant, amounted to a transfer pro tanto of the credit and notice to the debtor, according to article 2613 of the Code, found in the chapter which treats of the assignment and transfer of debts, &c. . . . In answer to this proposition, it suffices to say, that no debtor is bound to paya debt by portions, and it follows as a corollary, that no partial transfer can be made by a J r . creditor, so as to be binding on a debtor, even when notice is [537] given, except by express consent of the latter. The proprietor in the present instance, was not bound to accept the draft of the undertaker ; he refused positively to do so, and consequently he assumed no obligation in favor of the holder, Neither was notice of the transfer binding on him, being for a part only of the debt which might become due to the »,i undertaker. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.