
    Jerome Jorda v. H. Gobet et al.
    Where the contractor fails to complete a building within the time specified in the contract, the owner, after putting him in default, may proceed to finish the building, and the money remaining in his hands after paying for the completion, is a fund out of which the privileged claims of material men, &c., may be paid.
    The owner of a building being evicted under a contract, has no right to pay the contractor, in anticipation of the term stipulated in the contract; if he does so, he renders himself liable to the claims of material men, workmen, &c., who have given him the requisite notice before the time expired.
    APPEAL from the Second District Court of New Orleans, Lea, J. The judgment of the court of the first instance was as follows t
    “ The plaintiff contracted with Henry Gobet for the erection of a building at the corner of Canal street and the levee; said Gobet was to furnish all the materials,'and to deliver the house to plaintiff, completed according to contract, on the 1st November, 1848, under a penalty of eight dollars for each day’s delay after that date. On the other hand, Jorda was to pay for the work, according to saideontract, eight thousand eight hundred dollars, in installments, varying in amount, as the work progressed, and the last installment of $3300, was to be paid fifteen days after the delivery of the house to Jorda. Gobet failed to complete his contract at the time specified, but he was not put in default, nor was it till after the 1st January, 1849, that he ceased working on the building. When the building was actually completed, I am unable to gather from the testimony, with any degree of certainty. It seems, however, that it was not finished as late as the 24th January, and there is a strong probability that it was some days after, before it was entirely completed. But, assuming the fact that the building was completed on that day, the maturity of the last payment did not accrue until the 8th February, 1849. In the meantime, sundry claimants served attested notices upon Jorda, of their claims against Gobet for labor and materials furnished in the erection of said building. These claims have been proved to the extent allowed in the annexed statement. Nearly all of them, in addition to the claims they make, as sub-contractors, or material men,- have alleged and proved direct promises by Jorda to see them paid.
    “ Under the ruling of the Supreme Court, in the case of Allen v. Wills and others, as applied to this contract, it appears to me that Jorda had no fight to vpay any part of the last installment of $3300, until fifteen days after the work was entirely completed. He had no right to pay it, either to or for account of Gobet. Had Gobet abandoned the work, and been put in default, Jorda would have had a right to go on and complete the building, according to contract, and, after deducting the sum necessary to such completion, and such damages as the contract allowed, the balance of the installment would have constituted a fund out of which all the claimants would have been paid ; but, in the present case, Gobet was never put in default, nor does the evidence establish the amount of disbursements (if any there were,) made by Jorda, in completing the building, after an abandonment by Gobet. The plaintiff is, therefore, liable in the amount of the whole of the last installment to the workmen and material men who were engaged in the erection of the building in question. The payments made to, or on account of, Jorda, are therefore anticipated payments in relation to all those who served attested accounts on Jorda, within fifteen days subsequent to the completion of the building. The several claims presented have been proved.
    “ By the showing of the plaintiff it appears, that the payments to, or for account of, Gobet amounted to $8597 50. In the absence of any claims against Jorda, on the completion of the building, Gobet would have been a creditor for the amount of $202 50, deducting this sum from $2499 32, the amount due to the several claimants, for which Gobet is responsible to Jorda, and the claim of Jorda against Gobet, would amount to $2296 82. No proof has been offered of the registry of the principal contract; there is, therefore, no privilege in favor of any of the claimants on the building.
    “ It is therefore ordered, adjudged and decreed, that there be judgment against Jérome Jorda, and in favor of the following claimants, for the respective amounts annexed to their names, in the following tableau : 1. Depouilly Sf Co., three hundred and seventy dollars, $370. 2. P. Brugnot, seventy-four dollars, $74. 3. Maris 8f Delange, two hundred and twenty-four dollars, $224. 4. E. Knoca, one hundred and twenty dollars, $120. 5. R. Dargelos, five dollars, $5. 6. John B. Walsh, two hundred and twenty-four dollars, $224. 7. P. Claes, thirty dollars, $30. 8. N. Schroeder, forty-two dollars, $42. 9. H. Dietras, thirty-four dollars, $34. 10. E. Farger, twenty-three dollars, $23. 11. C. Pouilly, six hundred and twelve dollars, $612. 12. A. E. Corry, ninety dollars and sixty-two cents, $90 62. 13. M. Brugnot, fifty dollars and sixty-five cents, $50 65. 14. F. Correjolles, one hundred dollars, $100. 15. P. H. Monsseaux, one hundred and twenty-seven dollars and twenty-five cents, $127 25. 15. Sylvester Bennett, three hundred and seventy-two dollars eighty cents, $372 80. And that said Jérome Jorda do also pay the costs of this suit. It is further ordered, that as respects the claims of Curley 8f Hays for eighteen dollars and seventy cents, and David Ray for sixty-five dollars, there be judgment of non-suit; and, further, that there be judgment in favor of Jerome Jorda, and against Henry Gobet, for the sum of two thousand two hundred and seventy-six dollars and eighty-two cents, and cost of this suit.
    
      
      Roselius, for plaintiff. Buisson, Collins, and Denegre, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

For the reasons assigned by the district judge, the judgment-is affirmed, with costs.  