
    (111 So. 794)
    No. 26438.
    J. L. & D. M. DAVIS v. METHODIST PROTESTANT CHURCH OF HAYNESVILLE.
    (Feb. 28, 1927.)
    
      (Syllabus by Editorial Staff.) '
    1. Mechanics’ liens <@=>227 — As respects sureties on contractor’s bond, contract to pay for labor and materials is not faithfully performed unless building is delivered free from mechanics’ liens.'
    As respects sureties on contractor’s bond, a contract to erect a building at the contractor’s expense for labor and materials is not faithfully performed, where contractor fails to pay for materials, leaving -them to be paid by liens filed against the building.
    2. Mechanics’ liens <@=227 — Materialmen, being sureties on contractor’s bond, held estopped from asserting liens, where contract was not fully performed. •
    Where materialmen held lien' on building for materials furnished, but were also .sureties on contractor’s bond, given for the faithful execution of the work, under contract whereby contractor was to pay for labor and materials, they are estopped from asserting lien.
    Appeal from Third Judicial District Court, Parish of Claiborne; J. E. Reynolds, Judge.
    Action by J. L. & D. M. Davis against the Methodist Protestant Church of Haynesville. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    
      T. H. MeEaehern, of Homer, for appel- ‘ lants.
    Meadors & Atkins, of Homer, for appellee.
   ST. PAUL, ,T.

The defendant’s church was built by Tull & Sample, contractors, and plaintiff (a partnership) became sureties on the bond given by the contractors for the faithful execution of the work; which of course included the obligation to deliver the building free of incumbrances arising from liens for materials purchased by the contractors and not paid for, even though not specially mentioned. .

I.

Plaintiffs furnished certain material to the ■ contractor which were not paid for, and ,now claim a lien on the building.

The defense is that the lien was not recorded in time; that, in any event, plaintiffs, being sureties on the bond given by the contractors as aforesaid, are estopped from proceeding against the building contrary to their guaranty that the contractor would faithfully do the work (and deliver it free of liens); and in the alternative, defendant prays for judgment, on the bond, against plaintiff for a like amount as claimed.

II.

The trial judge rejected plaintiffs’ claim on the ground that the lien was not recorded in time. But we find it unnecessary to lbok into that phase of the ease, since plaintiffs are clearly estopped by their bond from proceeding against the building.

Manifestly, as we have said, an engagement to erect a building at one’s own expense for labor and materials cannot be faithfully performed by failing to pay for the materials and leaving them to be paid through liens filed against the building. And since plaintiffs bound themselves to see that the obligation of the contractors was faithfully performed, it follows that they are estopped from asserting liens against the building the result of which would be that the contractors would not have faithfully performed their obligations under the contract.

Decree.

The judgment appealed from is therefore affirmed.  