
    Claude Tournier v. Municipality Number One.
    Where the municipality had agreed with a contractor to make certain banquettes at a fixed price, one-third to be paid by the municipality and the other two-thirds by the front proprietors, and it having been settled by a suit that the front proprietors were liable for only one-third, the municipality will be considered as a warrantor for the remaining third of the price, and held liable for that sum.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    
      T. W. Collins, for plaintiff.
    
      R. Preaux, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff claims from the defendant the sum of $3682 40, for work done and materials furnished under two certain contracts made by the municipality with Hubert Oirard, for the making and laying of flatboat gunwale banquettes in the suburb Tremé. By these contracts the municipality was to pay one-third of the price agreed upon, and the two-thirds were to be paid by the owners of property in front of which tho banquettes were to be made. The municipality paid its third; but it is alleged that the plaintiff has not been able to collect the whole of the remaining two-thirds from the property holders, from causes for which the municipality is responsible. This suit is for the amount which the defendant has been unable to recover. The plaintiff had judgment in the court below, and the defendant has appealed.

It having been determined by a court of competent jurisdiction in the last resort, that the plaintiff could only recover one-third of the cost of the work from the owners of property, instead of two-thirds, as was stipulated in the contract between the parties, it seems to us necessarily to follow, that the plaintiff has a claim on the municipality for the deficiency. The contractor agreed to take, as the price of his work and material, the debt of the adjacent property owners for two-thirds, looking directly to the municipality for the one-third. The municipality warranted to the contractor the existence of the debt, or recourse against the property owners for two-thirds of the cost. This debt having been determined not to be due, the warranty is falsified, and the municipality is bound by it. We do not understand any question to have been made as to the correctness of the amount due the plaintiff. The judgment of the district court cannot be disturbed.

Judgment affirmed, with costs.  