
    M'INTOSH vs. CLANNON.
    
    APPEAL FROM THE COMMERCIAL COURT OF NEW ORLEANS.
    Where a building contract is modified, at the instance of the proprietor, and a plasterer employed separate from the contract with the builder, he will be entitled to recover of the proprietor independent of the original contract.
    The builder is a competent witness to testify in a suit between the plasterer and proprietor, for his wages, when the latter has been employed independent of the building contract.
    This is an action to recover the amount of a plasterer’s wages.
    The facts of the case are sufficiently explained in the opinion of the court.
    
      Kennedy, for plaintiff.
    
      G. B. Duncan, contra.
   Morphy, J.

delivered the opinion of- the court.

This is a claim of $817, for work-and labo^done in plastering two houses belonging to defendant’.' - The answer avers that defendant never employed plaintiff-t^o do the work ; that by a contract made withD. H. Twogood, an architect, for the building of these houses, the latter had bound himself to plaster all .the interior of them; that if plaintiff has any claim for his work he must look to the said Twogood, hfs employer, and not to defendant, who has long since settled for.and paid the price of this work to the said Twogood. The plaintiff had a judgment in the inferior court, from which defendant appealed.

From the building' contract it ¿ppears that Twogood had bound himself to do all the plastering of the houses, but the evidence shows satisfactorily, we think, that the defendant afterwards proposed that he should employ a plasterer and deduct the cost of this part of the work from thé contract price of the houses, and that Twogood agreed to this arrangement, provided, the price of the plastering should not - exceed 45 cents per yard. Our attention has been drawn to a bill of exception to the opinion of the judge below in admitting Two-g.00q as a witness to prove the subsequent arrangement by which the plastering was taken out of the original contract. It appears to us that the judge did not err. Twogood stood without interest between the parties; being bound by his contract to ^le wor^> ^ Clannon paid for it to plaintiff, Twogood was entitled to receive so much less from his contract. He was , . ' liable either to plaintiff or to defendant, and parol evidence was certainly admissible to show that since the making of the a secon(l agreement intervened, modifying the first, independent of Twogood’s testimony, other witnesses r ° J prove the employment of plaintiff by defendant, and not by Twogood, to do the plastering of these houses. Twogood’s clerk testifies, moreover, that in consequence of this new arrangement he deducted the plastering from the contract, and gave defendant a credit on the books for the $817, now claimed of him.

The builder witness°toPtestify in a suit between llie plasterer and pro-wage”when the employed3 pendent of the building eon-tract.

The judgment of the Commercial Court is therefore affirmed with costs.  