Semel v. Gould

Voorhies, J. The plaintiff, as surviving spouse of the late Gha/rles Semel and natural tutrix of her minor child, Fudora, Semel, sole issue of her marriage with deceased, instituted suit against the defendant, John M. Gould, for the recovery of $800, alleged to be for work done on a road and levee on his land fronting on the Mississippi, under a contract entered into between the deceased and the Police Jury of Pointe Coupee on the 22d of September, 1849, said land being then assessed as the property of Ye/i’bal and Ghamibeo's. The defendant, Gould, filed an answer setting up various matters of defence, among others, that he had purchased said land subsequent to the existenee of said claim or privilege, if any existed upon it, from Jea/n Laehand, with a general and special warranty. Whereupon he prayed for and obtained an order to cite his vendor in warranty. The warrantor filed an answer alleging that he had purchased the land on which the claim or privilege was sought to be enforced from the United States as public land subsequent to the period when the alleged work was done under the police regulations; and, consequently, acquired the same free from all liens, privileges and mortgages whatever. The plaintiff thereupon filed a supplemental petition, alleging that if the land belonged to the United States when the alleged work was performed, and was not subject to the charge thus imposed upon it, then the Police Jury of the parish of Pointe Coupee was liable for the payment of her claim, as the work had been performed in good faith by the deceased for the benefit of the parish; and prayed that the Police Jury be cited and condemned to pay her the price thus stipulated for said work. The Police Jury, in answer, claimed to be exempted from liability under the following- clause of the contract, to wit: “ And the said Paul Joffrion does, by these presents, stipulate that the parish of Pointe Coupée will in no manner be bound for the payment of said work, and that the aforesaid owners must and ought to be bound for the payment of the same. To all of which the said contractor agrees.” There was judgment in favor of the plaintiff against the Police Jury, and the latter appealed. The evidence shows conclusively that the land on which the work was performed, under the contract, was a portion of the public domain and continued to be so long after the completion of said work; that said road was of great service to the parish, and the levee a protection to a large portion thereof from inundation. [226] We consider the appellants, under the authority of the case of Cronan v. Municipality No. One, 5 An. 537, to he liable to the plaintiff. The clause of the contract under which they seek to shelter themselves, was certainly not intended to secure to the public the benefit of work so essential to its use and protection from inundation at the expense of the contractor. In making the contract, there was an implied warranty on the part of the Police Jury that the land on which the work was to be done belonged to persons whose property could be reached under their ordinances to defray the expenses of such works. It is, therefore, ordered, that the judgment of the court below be affirmed, with costs.