
    WHITE ET AL vs. NEW-ORLEANS ARCHITECT CO.
    Eastern Dist.
    
      June, 1837.
    
    AITEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.
    The drawees and acceptors of orders left in their possession, are not released and at liberty to settle and pay over the funds in their hands to the drawer, from the fact that the orders arc withdrawn from them on their refusal to pay them when called on.
    This suit is instituted on two orders drawn by A. T. Wood, .on the New-Orleans Architect Company, in favor of the plaintiffs ; the first dated June 11th, 1834, for five hundred and forty-six dollars and fifty-six cents, payable out of the first moneys that may be due him (Wood) on his contract with said company, with seven per cent, interest until paid.
    
      The second, dated July 7th, 1834, payable out of the second payment of moneys that might become due on said contract, etc.
    These orders were both accepted verbally by the president and secretary, and left in their possession. In- the following March, the plaintiff sent a written note to the company’s office, requesting payment of the two orders left with them, and on refusal, to deliver up the orders. The president told the person there was no funds in hand to pay the orders and they were given up.
    Wood, the drawer of the orders, had contracted with the Architect Company, in July, 1833, to build a block of buildings, and was to receive his money in instalments as the work progressed. In the summer following, he drew the foregoing orders on this fund, in favor of the plaintiffs.
    It was in evidence, that from the time of drawing these orders, and before they were withdrawn, there were sufficient funds in the hands of the defendants belonging to Wood, to have paid them off; that in the meantime they settled and paid the amount owing to Wood himself.
    The parish judge was of opinion, that having assumed the payment of the orders, the defendants were bound by that assumption. Judgment was given accordingly. The defendants appealed.
    
      J. Slidell, for the plaintiffs,
    urged the affirmance of the. judgment below.
    
      Denis, for the defendants,
    contended, that the plaintiffs having consented to be paid out of the second payment due by the Architect Company to Wood, and having withdrawn their orders the 30th March following, the defendants could not, after this event, refuse payment to Wood.
   Bullard, J,,

delivered the opinion of the court.

The defendants are appellants from a judgment condemning them to pay the amount of two orders for money, drawn by Wood, payable out of a particular fund. The defendants, by their president and secretary, accepted verbally, and the drafts were before in their hands, but they afterwards settled with Wood, and refused to pay the amount of the two orders.

The drawees and acceptors of orders left in their possession, are not released and at liberty to settle and pay over the funds in their hands to the drawer, from the fact that the orders are withdrawn from them on their refusal to pay them when called on.

The appellants contend that they were released by the plaintiffs * and were at liberty to pay over the fund to Wood, because the plaintiffs some time before that payment withdrew the orders from their possession. To this it may be answered ; 1st, that they had accepted to pay, and that the money was due to Wood sometime before the orders were withdrawn; and 2d, that the orders were withdrawn because the defendants refused to pay. There is nothing to show that the plaintiffs intended to release them from their previous engagement.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.  