
    NO. 8067
    COURT OF APPEAL PARISH OF ORLEANS.
    KARL HANSEN versus NATIONAL SURETY COMPANY.
    By Dlnkelsplel; J.
   By Dinkelspiel} J.

In order to oorreotly decide this oase we refer to the record Ho. 121069 of the Civil District Court, the suit of Conservative Homestead Association versus James C. Tourney.

In that suit, to which this is-the outgrowth, the plaintiff there sued the defendant beoause he had entered into a written contract to ereot a certain building in the City of Hew Orleans, for the sum of $4094.00, and to which oontraot the defendant in the present suit was the surety of the defendant in that oase and alleging that Tourney had defaulted after the first payment which was on January 19th, 1916, plaintiff in that suit called upon the surety for defendant to jskjc proteot the plaintiff in that case, under its bond.-

A judgment was rendered condemning the surety oompany to pay the various privileged oreditors the amounts due them and the Surety Company, defendant in this oase was ordered to finish the building.

In accordance with judgment rendered, the defendant Surety Company employed the present plaintiff to finish the building for Seven Hundred Dollars} plaintiff was to furnish the labor only end the defendant was to furnish the material. Plaintiff proceeded tm. with the work, when his oontraot was cancelled and a new contract made with a Hr. Frank to finish the building and furnish everything, plaintiff being notified to get off the building and work, which he refused to do until he was paid for his labor and profit and for his labor he claimed $113.00 and for his profit and damages the sum of $350.00.

Defendant filed exceptions which we re all overruled and referred to the Merits* He answered 'that he had discharged the plaintiff for good and legal cause and had ordered him to quit work and that the only money that plaintiff was entitled to was the ao-incuxrsd tual expense/and labor furnished prior to January 19th, but was entitled to no damages.

On the trial of this oause evidenoe pro and oon which at time3 exhibited more or less of ill feelings between the parties, but which finally resulted in a judgment for plaintiff in the sum claimed.

A resume'Of the evidence introduced together with the admissions made hy the defendant in thi3 case satisfies ub that the plaintiff endeavored to execute' his oontraot v/ith the defendant; he started the work under the supervision of a Mr. 3enson, an expertj and consulted an architect as to his duty, who examined the premises in question, advised plaintiff of what he should do and on whioh cdvice he, plaintiff, acted; he has established that he expended the amount of money he claims in this case and that he was prevented from finishing the work through the acts of the defendant; he has sworn that the damage v/as §350.00, the amount of profit he would have realized had he completed the work and both the Code and the Authorities concur in allowing him this and we ere satisfied that he is entitled to the full a-inount of his claim.

Art. 3735. C. C. Cancellation of Oontraot by Owner. "The proprietor ha3 a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and lab- or already incurred, and suoh damages as the nature of the oase may require."

"A substantial performance of the oontraot is all that the law requires, and the employer will not be permitted to a-vold payment beoauee the strlot letter of the agreement has not been oarfied out. Slight deviations, or technical, unimportant, or Inadvertent omissions or defects, will not bar reoovery.n Dugue vs. Levy, 114 La. p. 21; also see McCord vs. Railroad 5th Ann. 220.

"Where the proprietor has oanoelled a contract made with an undertaker for the ereotlon of a building, the Court will not award the undertaker the full amount he was to reoelve for the entire servloes necessary to oomplete the building, but will award the amount of profit whioh he would make on the oontraot, if completed.". Moore vs. Howard, 18 Ann. p. 635.

For the reasons assigned it is ordered, adjudged and decreed that the Judgment of the Court aquo be and the same is hereby affirmed, with oosts of both Courts to bs paid by the defendant.

-Judgment Affirmed-  