Giraghty v. Saulet

Morphy, J. delivered the opinion of the court. Plaintiff undertook to do certain paving and curbing on the banquettes of property belonging to defendants, at the price of $3 35 per running foot, of which price defendants agreed, that they should pay two-thirds, and required, that plaintiff should collect, at his own risk and charge, the remaining bne-third from the Council of the Second Municipality. The work was done to the satisfaction of defendants, who made a settlement with plaintiff on the 11th of May, 1838, in which it is stated, that the settlement is not a final one, because there is some dispute or difficulty as to the work done at the several corners of the property. It is admitted, that notwithstanding the terms of the contract, defendants applied for and received from the Second Municipality the one-third of the expense of paving, which under the ordinances they were bound to pay ; the object of this suit is, to recover the difference between the amount so received by defendants for one-third of the work, and that allowed to plaintiff in the settlement, and some compensation for work done on eight corners of the property, belonging to [541] F. Saulet, and seven comers of that of widow Fouclier. The Judge below gave judgment for the surplus of money received of the Second Municipality, but disallowed the balance of the claim. The defendants appealed ; and the plaintiff prayed for an amendment of the judgment, which he contends should have granted the whole of his demand. This case having been submitted without argument, it is not easy for us to perceiye the grounds, on which plaintiff’s demand is resisted. There could hardly be any dispute as to the portion of the claim allowed by the Judge below. By his contract with defendants, plaintiff was to receive $3 25 per foot for two-thirds of the work, and he was to be paid for the other third by the Municipality at the usual price, which we understand is $3 50 per foot. The defendants who have received this difference, are clearly bound to pay it over to plaintiff, who under his contract was entitled to it. We cannot see any more difficulty in the other part of the claim. Defendants engaged to pay $3 25 per running foot, without any reservation whatsoever ; materials have been furnished, and work has been done at the corners of their property as well as in the other parts of it. Had they intended, not to pay any thing for that portion of the banquettes at the corners, which is not exactly in front of their property, they should have made a stipulation to that effect; plaintiff would or would not have assented to it; but having made no such reservation, and having suffered plaintiff to do this part of the work, as well as the rest, defendants are bound to compensate him . for it. We understand, that it is customary with the Second Municipality, not to pay any proportion of that part of the work; and that this is the ground, on which the claim is resisted. If such was the well known rule or usage in the Second Municipality on this subject, defendants must have expected to pay the whole cost of that portion of the banquettes; for it cannot be supposed, that they intended to have left it undone. Their refusal to pay appears to us the more unreasonable, as plaintiff has deducted from his claim onc-third of the cost of this part of the work ; thus placing them in the samo [542] situation, as though the Municipality had contributed their or- ,. ' . - , proportion of the expense. Where mate-njthea"amlwork d mises and for they are hound aitlmugh3 Talflfe forn°Q the contract for other work done atthe same time. [542] It is therefore ordered, adjudged and decreed that the judgment of the Parish Court he reversed ; and proceeding to give such judgment, as in our opinion should have been rendered below: It is ordered and adjudged, that plaintiff do recover from Francois Saulet three hundred and seventy-five dollars and 75 cents ; and from widow Foucher the sum of three hundred and forty-five dollars and 66 cents ; and that each of said defendants pay one-half of the costs in both courts,