
    No. 2571
    Second Circuit
    BLANCHE v. DREW BROTHERS
    (May 7, 1926. Opinion and Decree.)
    
      (Syllabus by the Editor.)
    
    1. Louisiana Digest — Appeal—Par. 521.
    Where in a concursus proceeding it is impossible for the court to determine what portion of the claim is owing to one of the plaintiffs, the suit will be dismissed as of non-suit.
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of Madison. Hon. F. X. Ransdell, Judge.
    Action by George S. Blanche against Drew Brothers.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Snyder & Sevier, of Tallulah, attorneys for plaintiff, appellee.
    Drew Brothers, of Minden, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a concursus proceeding provoked by Drew Brothers against George S. Blanche, the Louisiana Highway Commission and others, in which the latter were brought into court by legal citation.

The question to be decided is as to George S. Blanche’s claim for $120.30, balance claimed for gravel hauled, and $372.05 for cutting a right of way.

The claim grows out of the contract between Drew Brothers and the Louisiana Highway Commission for the construction of what is known as Project Number 117-B.

The district judge before whom the case was tried rendered a written opinion wherein he said:

“Blanche says he did so much work, amounting to what he claims to be due him. Complainants (Drew Brothers) in their evidence seem to be uncertain as to what was done. I therefore feel constrained to accept Blanche’s version as being correct. Act 224 of 1918 was passed for the benefit of all parties to public contracts, and that a proper adjustment of claims growing out of same might be reasonably effected. While Blanche may have failed to file statement of his account, as provided in the Act, I do not see that under the circumstances of this case that his claim can be defeated by reason of such neglectful act, for if I am correct in allowing it then Drew Brothers, so far as this court is concerned, owes it, and the money for its payment is in the hands of the Louisiana Highway Commission, which commission through their officers employed him to do part of the work. See testimony of George S. Blanche.”

George S. Blanche testified as to his claim for $372.05 as follows:

“Q. The clearing of this right-of-way, did you have a contract with Mr. Drew?
“A. Mr. d’Autremont had me to do some of the job, but the other was a piece they left out and Mr. d’Autremont had me to go cut it. There was a strip left between the first right-of-way and the railroad right-of-way, and they decided they wanted it cut out and they asked some of the people out there to cut it and they wanted 60 cents. Mr. d’Autremont came to me and asked me to go cut it, and told him I could not do it as half the strip was mud. He said go ahead and do the best I could and cut it as cheap as I could and they would see I did not lose anything. When I started I got on the bad end of it first, with mud over knee deep on the mules, and we had to put a snatch-block on and we got along awful slow. When we got two-thirds through the mud he said: ‘You are getting along too slow.’ And I showed him my expense account and he said, ‘that is costing too much and X think you had better quit as you have to move the gravel’. The gravel car was to be in the next day so I knocked off and went to work with the gravel.
“Q. This . statement shows just what you cleared?
“A. Yes, shows the number of feet.
“Q. Did you have any contract with Drew Brothers to do that clearing?
“A. For the first part, not the second.”

R. C. Drew testified:

“Q. You were to pay him $30.00 an acre for the entire strip?
“A. Yes, sir.
“Q. He said something about some work between the railroad and the original contract?
“A. Well, that’s a strip we are talking about. When this road was laid out, after we cut the original right-of-way there was a strip that ran from the corner of Joe’s bayou to about 45 feet at Cows bayou. The engineers agreed to pay us for 45 feet all the way.
“Q. Did he have a contract to clear that all the way through there?
“A. Yes, sir.”

From this evidence it is impossible for the court to determine what portion of Blanche's claim for $372.05 is owing by Drew Brothers, and it therefore follows that plaintiff’s claim as to this amount must be dismissed as of non-suit.

As to plaintiff’s claim for $120.36 for hauling gravel, it is fully established by the evidence and he is entitled to judgment for that amount.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and it is now ordered, adjudged and decreed that George S. Blanche do have and recover judgment against Drew Brothers for the sum of $126.36 with legal interest thereon from August 18, 1924, until paid, and costs; and that his claim against Drew Brothers for $372.65 be dismissed as of non-suit.

It is further ordered, adjudged and decreed that this judgment be paid out of the fund in the hands of the Louisiana Highway Commission to the credit of Project Number 117-B.

The costs of the lower court to be paid by Drew Brothers; the costs of the appeal to be paid by George S. Blanche.  