
    No. 10,571
    Orleans
    MARSIGLIA v. McKEE, ET AL., Appellant
    (February 27, 1928. Opinion and Decree.)
    
      (Syllabus by the Oourt)
    1. Louisiana Digest — Builders and Building — Par. 7, 29; Mechanical Privileges —Par. 53, 55.
    When tbe law relative to building contracts provides that tbe surety of tbe contractor shall be limited to such defenses only as the principal on the bond can make, the surety cannot make the defense that tbe materials ordered by tbe contractor were not used on tbe building.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Vito Marsiglia against Earl W. McKee et al., appellants.
    There was judgment for plaintiff and defendant surety appealed.
    Judgment amended and affirmed.
    Tbeo. Cotonio. of New Orleans, attorney for plaintiff, appellee.
    Dart and Dart, Emile Pomes, John R. Reilley, Sanders, Baldwin, Yiosea and Haspel, and J. J. Jackson, all of New Orleans, attorneys for defendants, appellants.
    H. W. Robinson, Denegre, Leovy and Chaffe,' of New Orleans, attorneys for American Surety Co., defendant, appellant.
   CLAIBORNE, J.

This is a suit of materialmen against the contractor, McKee, and his surety, the American Surety Company.

There was judgment in favor of the materialmen against tbe contractor and bis surety.

Tbe surety has appealed.

Its defense is that there is no showing that the materials were delivered at tbe site of tbe buildings, nor that they went into the building.

In the case of Graphic Arts Building Co. vs. Union Indemnity Co., 163 La. 1, 111 South. 470, the Court decided that a surety on a contractor’s bond is limited tq defenses that can be made by the contractor in suits for materials furnished him. “Materialmen may recover against surety for material specially manufactured for building, though one-third of materials was used elsewhere by contractor.”

This decision was followed by tbe Court of Appeal for the First Circuit in Thibodeaux vs. Globe Indemnity Company, 6 La. App. 380. Tbe defense was “that plaintiff cannot recover because be has failed to prove that the materials were actually used in the erection of tbe buildings.” The Court said that the contractor could not defend upon the ground that he had not used tbe materials in tbe building; therefore neither could tbe surety, quoting tbe case of Graphic Arts Building cited above. We are bound by tbe opinion in tbe last case and cannot decide in opposition to tbe Court of tbe First Circuit.

But tbe trial court rendered judgment in favor of Scbill and of Hortman who have already been paid.

This inadvertence must be corrected.

It is therefore ordered that the judg* ment herein be amended by reversing tbe two judgments in favor of Hortman and Co., Inc., for $229.35 and $1.50 and in favor of Ellie H. Schill for $522' and $2.00, and as thus amended that the judgment herein be affirmed.  