
    Denis Cronan v. Municipality No. One.
    Where the Municipality No. One contracts with a paver, that he shall be paid a portion of the price, by the proprietors of the property fronting on the pavement, and those proprietors refuse or neglect to make the payment, the Municipality is bound for the amount stipulated to be paid by the contract.
    APPEAL from the Second District Court of New Orleans, Lea, J. The judgment of the district court was as follows :
    “This is a suit brought for the paving done according to contract with Municipality No. One. There is no dispute about the work itself, or the amount due for it, it having been accepted by the surveyor of the municipality, as having been executed according to contract. According to the terms of the contract, the paving done by plaintiff was to be paid for as follows : ‘The portion to be paid by Municipality No. One, in notes of said Municipality, at five years, bearing five per cent interest per annum; and for the remaining portion the said Cronan shall receive the hereinafter described notes from the property holders in front of said paving. The said property holder’s shall be allowed twelve months for the payment of their one-third proportion on the cost price of said paving, and shall furnish their notes therefor, with good and sufficient security.’ The municipality stipulates for the right to retain one-tenth part of the whole sum, to be paid on the completion of the said work, as a guarantee for its soundness and solidity during one year from the time of its delivery; 'said tenth part l.o be paid at the expiration of the year aforesaid. The amicable demand and refusal of payment is admitted by both defendants. The ordinances of the municipality authorizing the contract, and establishing the modes of payment, as set forth in the petition, are in evidence. The plaintiffs now claim the one-third proportion of the price of the paving done on the. Canal Carondelet. The municipality alleges that it has settled with plaintiff ail claims due under the contract. That the Orleans Navigation Company is owner of the property fronting on the street paved, and is the only party liable under the contract, and according to law ; and prays that said Navigation Company be called in warranty. The Navigation Company denies that said Company is owner of any property on the street paved, which, under existing laws, can be taxed for paving. It appears to me, that, under the pleadings and evidence, but two questions are presented to the court for its decision. 1st. Is the Navigation Company the owner of property on the street paved ? If it is not, is the municipality liable for the amount ! On the first point, no evidence has been offered ; the ownership of the property by the Company is expressly put at issue, and it has not been proved. No judgment, therefore, can be rendered against the Company. But, secondly, is the municipality liable ? Can they shelter themselves under the stipulation in the contract, that plaintiff should receive in payment the notes of property holders in front of said paving! I think not. Plaintiff contracted directly with the municipality not with the property holders. The stipulation contained in the contract merely designated a mode in which the municipality should be allowed to liquidate a part of its obligations to plaintiff, it did not extinguish those obligations, and that, mode of payment not having been complied with, the municipality (which I consider as the debtor) is bound for the debt. There is an incidental question of interest which requires notice. The plaintiff claims interest on the principal sum claimed from the 19th day of April, 1848. By the terms of the contract, the proprietors were to have been allowed twelve months to pay their taxable proportion of the paving; and in no part of the contract is it stated that the notes to be given should bear interest from date. I conceive that interest should run from the maturity, not the date, of the obligation.
    “ It is ordered, adjudged and decreed, that there be judgment in favor of the plaintiff, Denis Cronan, and against the Municipality No. One for the sum of five thousand five hundred and fifty-nine dollars, with interest thereon at the rate of five per centum per annum, from the 3 9th April, 1849, till paid, and costs of suit; and as respects the Orleans Navigation Company, that judgment of non-suit be entered against the plaintiff and the Municipality No. One.
    
      W. D. Hennen, for plaintiff. R. Preaux, for defendant.
   The judgment of the court (Eustis, C. J. being absent.) was pronounced by

Rost, J.

For the reasons given by the district judge, it is ordered, that the judgment in this case be affirmed, with costs.  