
    NO. 7429.
    (Court of Appeal Parish at Orleans.)
    Carolina Portland Cement Company. -vs-Carey & Boettner et. als.
   Dinkelspeil- J.-

The controversy in this case presents sub--star.tij.lly the following fácts;-

The plaintiffs, manufacturers of cement and other building materials,sue Carey & Boettner, an ordinary partnership, composed of Valter T. Carey and Henry Boettner, the Sewerage & Rater Board of Hew Orleans, Richard He. Carthy, Jr.and the United States Fidelity and Guaranty Company, claiming that petitioners furnished to Care$ &'Boettner, from June ?th. 1915 to June 18th. 1915, they being sub-contractors of Bichard He. Carthy Jr., goods, wares, merchandise and materials for the price and sum of 0711 • 25; that said materials so furnished were used by Carey & Boettner,wait sub-contractors, under, their oontraot with Ho. Carthy in work dene for the Sewerage & Rater Board under He. Carthy's contract with it.

That under said contracts the surety company became responsible to whoever might appear and be entitled thereto. Its libility therefor being in a sum in excess of the amount claimed in favor of all parties in interest as above c recited.

In this case all parties were served . Carey & Boettner not answering,a judgment by default was entered against them and confirmed.

The Sewerage & Rater Board in its answer claimed substantially, that a complete settlement was had between it and the 3aid 'Jo. Carthy, but that respondent had in its hands 0714.00 to cover such claims as plaintiff herein might have under the attested account served on respondent les3 such oosts as may be expended by rsspindent herein.

Richard. He. Carthy in his answer admits, that he was indebted in the sum claimed, in fact the original contract was for $3.114.00. on which Mo. Carthy claims to have paid $3.369.70., and therefor hae in his hands subjeot to this judgment the sum of $60.30., which he is ready and willing to pay.

The Surety Company and Me. Carthy base their defenses on the fact that this being a public work, that there is no lien or priv--llege in favor of the material man or otherwise, and that plain-tiffs have no lien or privilege on them against the works or in the fund in the hands of the Sewerage & Water Board. On the contrary, they allege, that said amount in the hands of the Sewer-age & Water Board, was and is due to Me. Carthy in his sole and exclusive right, free from any claim by the plaintiffs, and said fund should be paid to Me. Carthy, and the Sewerage & Water Board should be ordered and directed to make such payment.

Ho. Carthy further claims in his behalf, that Carey & Boettnei not having given proper notice at the proper time, that is forty--fivs days, under act 134 of 1906, plaintiffs cannot be heard to contest this amount not having given that notice and Me. Carthy, not having received it from anyone else.

We donot understand and do not ixxxsxgxz* interpret the decisions in the cases of Barret Manufacturing Co. vs. The Dock Board, 133 La. Page 1022, nor the case of the State vs. Jackson, 137 La. Page 931 to be in point with the case at barj for the reason that these contracts were made with public bodies of the State or its,adjuncts , and under-the terms of the act in question there can be no doubt, the State as such, not being sueable parties, laboring men, material men-and others can not look to the State, as in these cases above sited, for compensation. The act in question being read into the contract, and therefore we do not oonsider that ease to apply in this controversy.

Ha The question of no service having been made of an attested account within the prescribed time doss not apply in this case, because the contract in question was net entered into betunen the sewerage 4 Water Board and Carey & Boettner, but, on the aontrary, between Ho. Carthy the oontraotor for the Sewerage & Water .Board and the aub-contractors Carey & Boettner, therefore the aot In question, In* so far as prescription is oonoerned , Is In our .judgment not applicable.

The Supreme Court in the case of Shreveport Mutual Building ± Association vs. Whittington, 141 La. Page 47, said; "In no oase has it ever been held that the surety was released by non service of an account upon the-owner; and this court cannot possibly so hold unless it it prepared to hold that the oontraotor is released for the Satute in express terms provides that: "The surety herein shall be limited to such defenses only as the principal on the bond can make.

For the reasons herein expressed the judgment of the District Court is affirmed.

Judgment affirmed.  