author: Watkins, J. Blanchard, J.

text:
    No. 12,611.
    Riley Y. Woodlief vs. George C. Logan, et als.
    Syllabus.
    A judgment having been pondered against several defendants, from which some of them appeal, suspensively, and others instituted au action of nullity-— Held, that the judgment annulling the decree having been rendered by this court, it should postpone action on the appeal from the judgment, until further proceedings are deemed necessary and appropriate.
    Notwithstanding a sub-contract for the transportation of the United States mail stipulates a fixed sum as liquidated damages for failure to perform the service required, same must be sued upon specifically and in terms, otherwise It can not be made the basis of a judgment in damages.
    Goldman vs. Goldman, 25 So. Rep., 558.
    In 'ease a sub-contractor abandons his engagement and gives notice to the postal department of his discontinuance of the service, and the original contractor resumes service under his original contract with the government, same can not be considered ás a' renewal of the sub-contract in any sense.
    In- the sub-contract the original contractor was a mere intermediary without any power or control. All that the contractor can claim of the defaulting subcontractor is that he shall protect him from actual loss and replace him la his original situation.
    ON APPEAL from-the- Civil District Court-for-the Parish of Orleans,- Tiighior, J. . \ ;

      Mice and Montgomery for Plaintiff and Appellee:''
    , ,W. B. Sommerville for Defendants and Appellants,

      Argued and submitted January 26, 1898.
    Order directing stay of proceedings May 30, 1898.

    Opinion handed down June 12, 1899.
    Decree amended and rehearing refused June 26, 1899.
   On the application for rehearing on the merits by Blanchard, f

The opinion of the court was delivered by

Watkins, J.

Plaintiff sued George G. Logan and his sureties on a sub-contract, made for carrying the United States mails; and from an adverse judgment, some of the sureties have appealed. It is'that appeal which is presented in this transcript.

One of the sureties on George C, Logan’s contract was the late Dr. Samuel Logan, and his heirs were made parties to this suit; and instead of appealing from the judgment, they instituted an action of nullity and sought to annul it — at the same time enjoining the execution thereof.

That suit was tried, and judgment rendered in defendants’ favor,, and the plaintiffs in injunction appealed.

That suit is of the same title as the instant one, but the docket number thereof is 12,713. That ease has been this day decided, and the judgment appealed from, reversed and remanded.

In our judgment, the instant case is so circumstanced, that further proceedings therein should be halted, until action in the premises is deemed necessary and appropriate.

And it is so ordered.

The foregoing decree was rendered on May 30, 1898.

The aforesaid suit .of same title, >No. 12,713, was brought by the heirs of Logan to annul a judgment, because same had not beer, read' and signed by the judge of the lower court; and from a judgment dissolving the injunction therein, the plaintiffs appealed, and in this court the judgment was reversed and the cause remanded, to he proceeded with according to law. (50th Ann., 438.)

The present case of same title, number 12,611, of which the proceeding in the case, No. 12,713. was a branch, by the aforesaid decree of this court was suspended, until action in the premises should be deemed necessary and appropriate.

That decree was entered on May 30th, 1898, and, in that condition, same has remained on the docket of this court undisposed of.

When suit 12,713 went back to the District Court, it was sub-mitted upon the pleadings and evidence on file, and decided in favor >'f the plaintiff, and judgment was signed on June 20, 1890— same being in terms similar to those of the original judgment, whiríb is the subject of the present appeal.

Disembarrassed of the multifarious issues and proceedings referred to supra, this appeal is the only one before the court on its merits — the judgment in 12,954 being merely 'ancillary thereto, and the determination of the appeal of the Logan heirs therein, appertaining exclusively to their standing in court.

Consequently, the two cases; entitled Riley Y. Woodlief vs. George C. Logan, at als., No. 12,611, and that of same title, 12,954,. will he taken as one and the same case — as they were originally, and as they have been since made by the orders of the District Court and. of this court.

The claim made by the plaintiff in the instant case, is as follows:

That on January Jth, 1890, he entered into a written contract with the United States, through the postmaster general, for transporting the mails on route No. 49,101 — it being “the covered regulation, “wagon, mail, messenger, transfer and mail station service at the City “of New Orleans, and any new or additional service of any kind which “might al any time during the term of said contract, to-wit: from “the 1st day of July, 1890, to the 30th day of June, 1894, he required.”

That the terms and conditions of the contract, which are annexed to and made a part of the petition, are alleged to be fully set forth therein, especially as to wagons or means for transportation of the mails, the nature and extent of the services to he performed, the duties undertaken, and the liabilities and penalties imposed upon the petitioner. The petition alleges, that among the terms and conditions it is provided, that said mails shall he transported wholly in two horse and other covered wagons, constructed and repaired as therein described; that petitioner should take the mail from, and deliver it into file postoffice, mail stations and ears, at such points, and at such hours,under the direction of the postmaster at New Orleans, approved by the-postmaster general, as would secure dispatch in making- connections, and facilitate distribuí ion, and at petitioner’s expense for tolls and ferriages; that he shall furnish such a number of wagons as should be deemed sufficient by tho postmaster; that be should be answerable in damages to the United States, or any person aggrieved for the faithful performance of all the duties and obligations of said contract, and for the careful and faithful conduct of persons employed by him, and to whom he should confide the care and transportation of said mails, and for the faithful performance of the duties then, or which might be imposed upon such persons in the care and transportation of said mails.

That said contract, among other things, also provided, that for ■failure to comply with any of the obligations thereof, as well as for sundry delinquencies mentioned therein, your petitioner should forfeit, and there might be withheld from his pay thereunder, such sums as the postmaster general might impose as fines and deductions, according to the nature and frequency of such failures and delinquencies; and that the postmaster general might annul said contract for such repeated failures, and for violating the postal laws; and that such annulment should not impair the right of the United States to claim damages from petitioner; and that said contract should be subject to all the conditions imposed by law, and the several acts of congress relating to post offices and post roads.

Petitioner further avers, that on the ---day of April, 1890, he entered into a so-called sub-contract with George 0. Logan, of the City of New Orleans, a duplicate of which contract is hereto annexed as part of the petition herein, and having taken cognizance of the contract herein first mentioned, the said Logan obligated himself to perform the duties imposed by the United States government on your petitioner, and in his place and stead, and in full compliance with the postal laws and regulations, and subject to all the requirements of your petitioner under his contract aforesaid, for the con- ■ consideration of $4593 per annum, payable quarterly in the months of .November, February, May and October of each year.

He further shows that Samuel Logan, Alexander Hill, Winnfield W. Gauche and Alfred A. Woods, all of the City of New Orleans, by the terms of the contract last described, “undertook, covenanted and agreed as sureties of said George 0. Logan, and bound themselves, each, for the separate sum of $2500, for his faithful compliance with all the terms and conditions of said contract.

“That in said contract it is specially provided that said contractor and his said sureties shall forfeit of the sum so aforesaid stipulated to be paid, among other causes, on account of trips not run, or failure to carry the mails, not exceeding three times the pay of the trip; for failing to deliver the mail in time for the connection with the departing mail, at least one-fourth the pay of the trip; for loss or depredation upon a mail pouch in his custody, not to exceed one and one-fourth times the value of the contents lost thereby.

Plaintiff alleges that Logan entered upon and continued in the performance of said contract, until the 30th of June, 1891, when he, without legal or proper cause, abandoned the same, and declared he would no longer continue in the performance thereof; and, thereupon, your petitioner, in order to prevent greater loss and damage, and to comply with his contract as afivesaid, with the United States, was compelled to resume its performance, and did so as soon thereafter as he was able to procure requisite equipment, and transport the same to fhe City of New Orleans, that is. on or about the Í5th of September, 1891.

“That, in the meantime, the proper authorities of the United States had provided, at the cost and expense of petitioner and according to law, for the temporary performance- of the contract, by said Logan so abandoned, and said temporary service was continued until the resumption by petitioner as aforesaid.

“Petitioner shows that by the failure and abandonment as aforesaid of said contract, by said George 0. TjOgan, he was put to great personal inconvenience, damage, cost, loss and expense in providing f-or and maintaining a suitable equipment for performing the duties undertaken by said Logan, up to the 30th day of June, 1894, in the employment of the necessary help and assistance for such performance.

“That there was deducted as forfeited from the- sums due your petitioner, under his said contract on account of loss or depredation upon the mail, on said-- day of April, 1891, during the term of said contract with said Logan, and for which amount he was and is liable thereunder, the full sum of $2548.64 — for all of which sums aggregating the full amount of $26,077.82, less the sum of $12,779.00, the price to be paid said Logan from the date of the abandonment of said contract to the end thereof, as fully set forth in exhibits, ‘A, B, 0, D and E,’ hereto annexed as part of this petition; and the said George O. Logan is liable to petitioner, and said sureties are, also liable, each for fhe sum of $2500.00.”

Petitioner alleges that sinee the execution of said contract with George C. Logan, Samuel Logan, one of the sureties has died, leaving several heir's who are named, and whom he requests to be made partis defendant.

The prayer of plaintiffs petition is, that lie have and recover-judgment against George C. Logan in -the sum of $12,298:88, and against each of the sureties upon his contract in the sum of $2500.00.

In limine, a.n exception -of no cause of action was filed-on the part of defendants, and same was, by the court, overruled.

.For answer, the defendants, George C. Logan, James D. Hill,Mrs. Linzay B. Hill, and Alfred A. Woods, plead the general issue, and admitted that they entered into the contract attached to the petition, but they especially denied that they were in default in the execution -of the same, or that plaintiff over put them in default in any manner whatever.

That they were in active and full discharge of the obligations entered into under said contract, when the plaintiff violently interfered and dispossessed them without -any cause whatever.

That they protested against the action of the plaintiff, hut he refused to permit them to continue in the discharge of the .duties thereunder. That if plaintiff has suffered any loss or damages whatever, it was entirely through his own fault, and not the fault of the defendant, George 0. Logan.

Further answering, defendants alleged that if plaintiff -has suffered any damage, his demand therefor has been prescribed by the lapse of one and five years, and that they plead the prescription -of one and live years in bar of plaintiff’s demand.

The heirs of Logan, for answer, plead a general denial, and admit that George C. Logan entered into the -contract sued upon, -and that the same was signed by their ancestor, the late Samuel Logan, as surety, as therein expressed. In other respects, the answer is similar to that of the other defendants.

It appears from (he record that a. trial in extenso was had upon the foregoing issues, and that the cause was submitted on the 35th of June, 189T, and on the 18th of June, following, judgment was rendered in favor of the plaintiff, which is of the following tenoi .

(1) Against George O. Logan in the sum of ten thousand dollars, with legal interest from judicial demand; (2)’against A. A. Woods, in the sum of twenty-five hundred dollars with like interest; (S') against the surviving widow of Alexander Hill, and -against-James I). Hill, his solo heir, in the sum of $1250.00; (4) against the Logan ticirs, five in number, for the sum of $357.14 each; (5) 'and against ail the defendants in solido for costs.

In this court the appellee asks that the judgment be increased so as to make both Alexander Hill, and Mrs. Lindzay Hill, liable for .$1250.00, each.

T.

Our learned brother of the lower court made no statement of the reasons which impelled him to render said judgment, and, consequently, this court is not advised of the theory upon which same is predicated, but, judging from the tenor of the argument of plaintiff’s counsel in his brief, he must have entertained the 'view that the liquidated damages specified in the contract were sought to be enforced; and, accordingly rendered judgment.

The sub-contract of George G. Logan, amongst other things, provides, to-wit:

“And it is hereby further agreed, that in case of failure or refusal “by the party of the second part, to perform the mail service herein “provided for, then the sum hereinbefore stipulated shall become im“inediately due to the party of the first part, as liquidated damages, “and not as a penalty, and, in default of payment thereof, may be “recovered in an action of debt.”

It further stipulates, “that the said party of the second part, and “his sureties aforesaid, do severally undertake, covenant and agree, “and do bind themselves to and with said party of the first part, in “the sum of ten thousand 'dollars” — the sureties binding themselves .in the several sums named — “to transport the United ’States mails “on the said route No. 49,101, etc.”

While it is true that the petition alleges that a duplicate of the sub-contract is thereto annexed as a part thereof, yet, no judgment is sought thereon, as it contains the distinct averment that “by the failure and’ abandonment as aforesaid, of his said contract, by ■George (I Log-an, petitioner was put to great personal inconvenience, damage, cost, loss and expense, in providing for and maintaining a suitable equipment for performing the duties undertaken by said Logan, up to the 30t'h day of June, 1894, in the employment of the necessary 'help and assistance for such performance, etc., * * * for all of which sums, aggregating the full sum of $26,077.82, less $13,779.90, the price to be paid said Logan from the date of the abandonment of said contract lo the end thereof, as fully set forth in the exhibits A, B, C, D and E, hereto annexed as parts of this-petition, the said George C. Logan is liable to your petitioners, and the said sureties are, also, liable, each, for the sum of $2500.00.”

And, upon this allegation, his prayer for judgement is for twelve thousand, two hundred and ninety-eight dollars and eighty-eight cents, against George C. Logan as principal, and against each of the sureties for their said respective shares thereof, the $30,000 principal.

Referring to the said exhibits, we find that the one marked “A.” styled “Equipment Account” foots up the total sum of three thousand, six hundred and ninety-eight dollars and eighty-four cents, and includes such items as horses, mules, gear, wagons, mail locks, horse brushes, curry combs, etc., embracing the dates July 3, 3891, to May 31, 1894.

Rut on this exhibit, defendant is given credit for two thousand, eight hundred and fifteen dollar’s, leaving ’a balance of eight hundred and eighty-three dollars and eighty-four cents.

The one marked “B” is styled a “Pay Roll Account,” and foots up ten thousand, four hundred and sixty-two dollars, and twenty-eight cents.

The one marked exhibit “O” is a food account, and foots up three thousand, one hundred and forty-nine dollars and ninety-two cents, embracing the items of bran, corn, hay, meal, oats, etc., for each of the months between September, 1891, and June, 1894.

The one marked “D” is a shoeing account, and foots up five hundred and twenty-one dollars and forty cents, and embraces expenses of shoeing horses for each month, from September, 1891, to June, 1894.

The one marked exhibit “E” is an expense account, and foots up (deven thousand and sixty dollars and thirty-eight cents ($33,060.38). upon which arc extended sundry items of expense, such as telegrams, wagon repairs, insurance, freight, water tax, gas deposit, hauling and storing’ wagons, repairing gas pipe, room' rent, gas, axle grease, castile soap, drayage — subject to sundry credits for damages, fines remitted, stable rent, etc., amounting to one thousand eight hundred and eighty-eight dollars and thirty-seven cents, leaving a balance of nine thousand, one hundred and sevc-nty-two dollars and one cent.

These various amounts aggregate the total sum of twenty-eight thousand, eight hundred and ninety-two dollars and eighty-two cents, and represent sundry small items of debit, extending through the entire period of three years from September, 1891, to June, 1894, during which time plaintiff operated his contract with the government. From that sum the petitioner deducted thirteen thousand, seven hundred and seventy-nine dollars as the amount he had collected from the government during those three years, for Logan’s account, and this sum added to the deductions previously made, ought to leave a difference of ten thousand, four hundred and ten dollars and forty-five cents, whereas plaintiff domands twelve thousand, two hundred and ninety-eight dollars and eighty-eight cents; but his petition and his prayer for judgment make claims for the sum of two thousand, fivo hundred and forty-eight dollars and sixty-four cents as the amount the government charged him for depredation upon the mails, while the contract was operated by the defendant, Logan.

These are the exhibits to which the petition refers as having been annexed to and made part thereof, and upon them judgment for damages in the way of reimbursement is prayed for.

It is to the items of these exhibits that the argument of counsel, pro and con, have been directed.

■It is true that plaintiff’s counsel did refer in his brief to the penal clause of the sub-contract, which liquidated the damages above referred to, of $10,000, but the only reference he makes thereto, is the following:

“These words show that the measure of damages as to the sureties “ for the breach were fixed, otherwise they could not become immedi- “ ately due, and plaintiff would have to wait till the period named in “the contract was arrived, in order then to determine the actual “ damages.”

Consequently, we think it manifest that this is a suit, as it is stated in the petition, for the plaintiff’s personal inconvenience, damage, cost, loss and expense, in providing for and maintaining suitable equipment for performing the duties undertaken by said Logan up to the 30th day of June, 1894, in the employment of the necessary help and assistance for such performance, and as particularly specified in the exhibits referred to, and not for tbe purpose of enforcing the terms of tho said clause of the sub-contract liquidating the damages.

Evidently counsel’s reference to the said clause of the contract is not at all pertinent or appropriate to the relief he claims, nor to the judgment which he seeks.

The following extract from his brief, is very opposite:

“These damages are made up of expenses to which plaintiff was “ put in providing for and maintaining an equipment * * * and “ the thousand and one .things necessary for the performance of the contract that the sub-contractor had abandoned; the transportation thereof to the city of New Orleans; the conduct of the contract in “New Orleans; the wages of employees; the feeding and shoeing of “ liorses, and the purchase of new ones to take the place of those in- “ capacitated or dead; the rent of a stable; the personal expenses of plaintiff rendered unavoidable by the default of the sub-contractor; •“ of fines imposed by tho department during tho time when the sub- “ contractor was in possession, and paid by plaintiff; and tho extra “amount paid for ‘temporary service’ between the date of Logan's “ abandonment and Woodlief’s resumption.”

it .is, therefore, obvious, ¡that we must look into the claim that plaintiff has made for damages, and see how his case stands upon the law and evidence, entirely outside of the .aforesaid clause of the contract.

The case of Pradat vs. Legare, 28th Ann., 337, is a somewhat similar case, but Goldman vs. Goldman, 25 So. Reporter, p. 556, is not a parallel case, as it was distinctly a suit brought to enforce the penal clause of a commutative contract.

II.

From the contract between the plaintiff and the Postmaster ¡General, which is brought up in the original and annexed to the transcript, it appears that the former was accepted as contractor for transporting the mails on route No. 49,101, as described in the petition, and at the price of four thousand, nine 'hundred and forty-two dollars per annum, for the period of time therein specified.

U further appears, from the contract that the specifications and particulars thereof have been fairly well reproduced in the plaintiff’s petition. Tho contract, amongst other things, contains the following stipulation, to-wit:

"Now, therefore, the said contractor and his sureties do jointly and “ severally undertake, covenant and agree with the United States of “ America, and do bind themselves * * * to be accountable and ■“ answerable in damages to the United States, or any person ■“ aggrieved, for the faithful performance by said contractor of all the “ duties and obligations herein assumed, or which are, or may hereafter, be imposed upon him by law in this behalf; and, further, to be “ answerable and accountable in damages for the careful and faithful “ conduct of the person or persons who may be employed by said con- “ tractor, and to whom said contractor shall commit the care and “ transportation of the mails, and for the faithful performance of the “ duties, which are, or may be, by law imposed upon such person in " the care and transportation of the mails.”

It further appears, from said contract, that it is stipulated and agreed, “that for the failure to deliver not heyond the control of the “ contractor, or for any delay or interference with the prompt deliv“ery of the mail at the postoffice, mail stations, depots, and land- " ings, or for carrying the mail in a manner different, or inferior, to “ that hereinbefore specified, * * * or for -any other delinquen- cies or omissions of duty under this contract, for 'all or any of which “ the contractor shall forfeit, and there may be withheld from his pay “ such sums as the Postmaster General may impose as fines or deduc- “ tions, according to the nature and frequency of the failure or delinJ| quency.”

This contract was signed by the plaintiff on the 25th day of ■January, 3890, and duly accepted by the Postmaster General.

On the 21st of May, 1890, the plaintiff entered into an agreement with George C. Logan, as sub-contractor, the stipulations of which are as follows, to-wit:

“That R. Y. Woodlief, of St. Louis, Missouri, contractor with the " United States, party of the first part, and George 0. Logan, of New “ Orleans, State of Louisiana, sub-contractor, party of the second '“ part, and Samuel A. Logan, M. D., Alexander Hill, Winnfield W. “ Gauche, and Alfred A. Woods, of New Orleans, Louisiana, as •“ sureties:

“WiTNicssETH: That, whereas the said party of the first part has “ executed a contract with the United St’ates (acting in this behalf “ by the Postmaster General) according to law, for transporting the ■“ mail on route 49,101, City of New Orleans, State of Louisiana, from “July 1, 1890, to June 30, 1894, on a schedule satisfactory to the ‘‘ postoffice department, and having- obtained conditional permission “ to sub-let the same, has m-ade the following agreement with the ■“ party of the second part, to-wit:

“The said party of the second part, and 'his sureties aforesaid, do severally undertake, covenant 'and agree, and do bind themselves to, and with said party of the first part, in the sum of ten thousand dollars, as follows, to-wit:

“Samuel Logan, M. D........;.............■...........$2,500 00

“Alexander Hill ....................................... 2,500 00

“Winnfield W. Gauche ..........................2,500 00

“Alfred A. Woods..................................... 2,500 09

“To transport the United States mail on the said route No. 49,101 “on the 1st day of July, 1890, to June 30th, 1894, inclusive, on the “ schedule hereto appended, or upon such schedule as the Postmaster “ General may direct, and in full compliance with the postal laws and “ regulations, and subject to all the requirements of the said party of “the first part, under the said contract with the.United States, for “ forty-five hundred and ninety-three dollars ($4,593.00) per annum.

vi* ‘vc -if -5s- ^

■ “And it is hereby further agreed that liability- for all fines and “ deductions imposed upon 'the party of the first part, by the .Post- “ master General, for failures and delinquencies in the performance “ of service under his contract, shall be assumed and borne by the “party of the second part, and, -if necessary, the Auditor of the “ Treasury, for the Postoffice Department, may enforce this agree- “ ment by proper deductions from any compensation due the party “ of the second part for services performed under this sub-contract.

“And it is hereby further agreed that for any additional services “required by the Postmaster General, -and not heretofore expressly “ stipulated, and for which the party of the first part may receive “extra pay, the party-of the second part shall be allowed not to “exceed a pro rata increase of compensation; and in case of diseon- “ tinuanee of service, as full indemnity, a pro rata of the one month’s “extra pay allowed by the United States to the -party of tho first part.”

This contract was signed by the plaintiff and each one of the aforesaid sureties, and accepted by George 'C. Logan, as sub-contractor.

Taking the statement of plaintiff’s claim for damages, as announced in his petition, and accompanying exhibits, in connection with the recitals of the contract of Woodlief, with the government, and 'his sub-contract with the defendant, Logan, the ease presented to the court is of the following tenor, to-wit:

That the defendant, Logan, entered upon the duties of his said contract on or about the 2nd day of May, 1890, and continued in the performance of same until the-30th day of June, 1891, one year and two months, when he gave written notification to the postmaster at New Orleans of his voluntary discontinuance thereof; that, immediately thereafter, the Postoffiee Department provided for the temporary performance of tho mail service, at his ( Woodlief’s) expense, until the date of 'his resumption thereof; and that he, in order to prevent greater loss and damage, and to comply with his contract with tho United States, was compelled to resume its performance, “and did so, thereafter, on 'tho 15th of September, 1891.”

That. Logan failed to carry out the contract, and his abandonment ■ of it put him (Woodlief) “to great personal inconvenience, damage, “ cost, loss and expense, in providing for and maintaining suitable “ equipment for performing the duties undertaken by said Logan up “to June, 1894”; that is to say, in providing for and maintaining the mail service as it was contemplated it should have been provided and maintained by Logan during the residue of bis term.

Tho estimate he makes of said damage, cost, loss and expense,' including personal inconvenience that he suffered by reason of his providing for and maintaining suitable equipment for said service during the remainder of tho term of Logan’s sub-contract, between June 30, 1891, and June 30, 1894, is tho sum of twenty-six thousand and seventy-seven dollars and eighty-two cents ($26,077.82) less the contract price due Logan for said period, thirteen thousand, seven hundred 'and seventy-nine dollars — making • the difference claimed twelve thousand, 'two hundred and seventy-eight dollars and eighty-eight cents- — same to include the amount of two thousand, five hundred and forty-eight dollars and sixty-four cents, which the department had deducted from the sum due Woodlief under his contract, as having been forfeited on account of loss to and depredation upon the mails on the ...... day of April, 1891, during the period of Logan’s sub-contract.

In other words, that Woodlief sustained damage, cost, loss and expense in providing for and maintaining a suitable equipment for carrying out the terms of Logan’s sub-contract for and during a period of three years, the large sum of twelve' thousand, two hundred and seventy-eight dollars and eighty-<two cents, less the amount he had forfeited to tho government-, two thousand, five hundred 'and' forty-eight dollars and sixty-four cents; that is to say, the sum of nine thousand, seven hundred and thirty dollars and eighteen cents.

Or, to state the plaintiff’s proposition differently, it is that after collecting from the government the full amount of four thousand, five hundred and ninety-three dollars per annum, which would have been due to Logan had he carried his contract to completion; .that is to Say, the full sum -of thirteen thousand, seven hundred and seventy-nine dollars, he, (Woodlief), sustained an additional loss of nine thousand, seven hundred and thirty dollars and eighteen cents, independently of the sum he forfeited to the government.

That this is exclusivelv ref enable to the failure of Ixigan and the abandonment by him of .his contract, 'his counsel’s statement is authority; and it is also authority for the statement that he was thereby put to groat personal inconvenience, damage, cost, loss and expense, in providing for and maintaining a suitable equipment for performing the duties undertaken by said Logan up to the 30th of -June, 1894, etc.

The only item of expense which originated during the tenure of Logan under his sub-contraet, for which Woodlief was held responsible, is the sum of two thousand, five hundred and forty-eight dollars and sixty-four cents. That the government deducted as forfeited, in April, 1891, on account of loss or depredation upon the mails, hut for that amount the plaintiff claims reimbursement, making his demand aggregate twelve thousand, two hundred and seventy-eight dollars and eighty-two cents.

There is no statement made in the petition, and none in the brief of counsel, to the effect that Logan, in any way, violated his contract, but it, on the contrary, alleges that the sole foundation of his claim is his (Logan’s) abandonment of it on the 30th of June, 1891, resulting in tho loss and damage stated.

Referring to the plaintiff’s contract with the Postmaster General, it appears that he was, on January 25th, 1890, accepted “as contractor for transporting the mails on route No. 49,101, * * - at the City of New Orleans, Louisiana, at four thousand, nine hundred and forty-three dollars per annum for and during the term beginning on the 1st day of July, 1890, and ending June 30, 1894”; and comparing the same with the sub-contract, it appears that lie contracted with the defendant Logan to perform the same service on the 2nd of May, 1890, at the price of four thousand five hundred and ninety-three dollars per annum; and thus contracting with the latter to perforin the service for four hundred dollars less per annum than he had contracted to perforin it for the government, Woodlief contemplated that, he would receive a net profit of sixteen hundred dollars during the life of the contract, if same were completely carried out.

It appears, from the sub-contract, that Logan and his sureties bound'themselves in the sum stated, for the transportation of the mails by Logan on said route for the periods specified in the schedule,, and in full compliance with the postal laws and regulations, and subject to all the requirements of the said party of the first part (Woodlief) under Ins contract- with the government; he, Logan,, became obligated to carry the mails in wagons of the kind described, and in sufficient numbers to transport, the whole of the mail, and within the schedule time fixed therein; and in a safe and secure- . manner, free from wet or injury, in substantial one or two horse-wagons, of sufficient capacity for the entire mail, and as otherwise particularly specified in the sub-contract.

This statement brings us to the consideration of the contract between the plaintiff, Woodlief, and the government, and that of the ■ sub-contract of Logan, in June, 1891, when, it is alleged, that same w-as abandoned by him.

Plaintiff’s counsel claims that the suit of George C. Logan et als. vs. R. Y. Woodlief, numbered 11,760 on the docket of this court, forms a part of the evidence in this suit, but this statement is disavowed by counsel for the defendants: but whether this be a fact, or nor, is of no material consequence, as this court is entitled to look into its own opinions, which are gerrnaine, and ascertain any facts therein stated, or principles of law therein announced, in so far as it may' consider same appropriate to any question it has under consideration.

F/ntortaining this theory, and having made an examination of our opinion in that case (47 Ann., 1142), we find that the parties thereto-are parties to the contract and sub-contract -which, arc the subject-ma tfers involved in this litigation, and may, consequently, be referred to, as our opinion therein carries additional weight and force in its application to the question at issue, on that account,

in that suit, plaintiffs sought to annul fhc,ir sub-contract with AVoodliof. and asked judgment, against, him sounding in damages, and a judgment rendered in the District Court, rejecting plainliffs’ demand, was affirmed by this court.

Hence, it is apparent that the views entertained and expressed with reference to the legal status of the sub-contract, must, necessarily, exercise a strong influence upon the determination of the issues now before us.

We glean therefrom the following' pertinent facts:

That it was under the authority of an act of Congress, of date May 17, 1878, that the defendant — plaintiff here — as mail contractor, entered into a sub-contract with George C. .Logan- to perform the duties of the former, and that he entered into the performance of the duties thereof in July, 1890. That, in June, 1891, the sub-contractor wrote to the postmaster at New Orleans, who referred same to the Postoffice Department at Washington, to idle efliect that it was impossible for him to continue the services required of him, because the company who had been engaged in hauling the mail for him .had gone into liquidation, and that the losses he had sustained in trying to continue the work, rendered it impossible for him to continue any longer, and that he felt compelled to discontinue the sub-contract from that day — June 80, 1891.

That the department, on the receipt of that letter, made a temporary contract with one James Reyne to lake charge of the1 transfer of the mails on the day following.

That in July following, the defendant, Woodliei (plaintiff here), notified the department that he had been informed of plaintiff’s (Logan’s) abandonment of his sub-contract, and that he would immediately resume service for his own account, under his original contract, which the Postmaster General permitted him to do.

That the plaintiff (Logan) admitted having received on September 1, 1891, notice from the department of a fine that- had been imposed, and that money due him was to -be withheld. That, thereupon, Reyne, tho temporary employee, relinquished his duties, and Woodliei took charge of the wagons, and resumed the hauling of the mail — the postmaster at New Orleans being informed of tbe action of the post office department.

That it is in view of these facts that plaintiff (Logan) complained that he had been dispossessed by’the defendant, and-prevented from continuing the services under his sub-contract.

On this state of facts, we held, that all contractors and subcontractors, are employees of tbe government, and under orders of that department, and paid by the government for their services. That they axe subject to fines for non-performance of duty, and for the causes assigned in the statute, this service may be discontinued.

That contracts to carry the mails, are public contracts, and cunta hi the terms that the statute prescribes and are binding upon contractors and sub-contractors.

Our opinion holds, that the plaintiff abandoned his contract, and had been replaced by competent authority, for cause deemed sufficient by the post office department. Our opinion then says:

“He was not dispossessed by the defendant. The dispossession “was an act of the authorized officer of the government, who, under “the statute, made arrangement for the transfer of the- mail.

“Contractors and sub-contractors are the agents upon whom the “government relies for carrying the mails. They are, in many respects, public agents.

“Here the plaintiff was not, truly, a sub-contractor or sub-agent “in the sense that 'he was to serve the contractor, exclusively, or “carry out the mandato imposed upon him by the, sub-contract for “account of this contractor, only. But he was virtually under ctni"tract with the government, and one of its agents in the mail da"partment, subject to its management and control.

* » * * * * * *

“In the mait-ter of performance of a contract, the principle, where “the sub-contractor assumes all the duties of the contractor with “express consent and under the terms of the law, as in this case, ap“plies.

"The contractor (Woodlief) was a mere intermediary, to whom "the plaintiff (Logan) did not give any notice of his abandonment “of the contract. Under the terms of his contract, the plaintiff sent “his notice of abandonment properly to the chief of the Post Office “Department, who at once acted upon plaintiff’s default.

"The aggregatio mentium between the parties concerned was com"píete without the. original contractor's consent. His objection , or "consent, under the terms of the contract, would have been useless, " as there was no place for the. one or ■the other.

"The Postofjice Department consented to■ the reinstatement of "the original contractor (Woodlief). ' We do not think it possible "to conclude from the facts of record, that the department consented "},9 the renewal of the sub-contract, and without that consent, it was “ not left for the plaintiff (Logan) to resume service under the eon ■ tract abandoned »y him.

-x- * * * *

“The carrying of'the mails is an attribute, of sovereignity, sur“rendered by the states to the general government, and subject to “its law and regulations.

-x- -x- * -x- -x- * -X- X

“There is no lack of legitimate power in the general government “to assume, as it has control, of all the contracts a.nd sub-con tracts-“for carrying the mails. It has the power, after abandonment by the “sub-contractor, to reinstate the original contractor, without permitting the sub-contractor to resume service under the sub-contract,.’'

The foregoing extracts from our opinion, serve to effectually settle the <iuestion of the defendant’s voluntary abandonment of his sub-contract, and clearly discloses that no further or other putting in default was necessary.

■In defendant’s letter of Tune 30, 1891, ho distinctly states, that, the liquidation of the company which he had employed to haul the. mail, and the losses occasioned him thereby, during the six weeks-previous thereto, rendered it impossible for him to continue any longer. “For,” says he, “I am compelled to discontinue from this day.”

Our opinion shows it to be. a fact that the postoffice department acted upon this advice, and made a temporary contract for the transfer of the mails, and that a few days thereafter, having been notified by the defendant, Woodlief, that he was willing to resume work under his original contract, the department permitted him to resume the same.

Having thus stated the legal' proposition that Logar) under his sub-contract was “virtually under contract with the government, and “one of its agents in the mail department, subject to its manage“raent and control,” and that. Woodlief as contractor1 was, in respect thereto, “a mere intermediary, to whom the plaintiff, Logan, did not give notice of his abandonment of his sub-contract,” and wa« under no obligation to do so; and having further declared that the -postmaster general had permitted the defendant, Woodlief, to resume service under the original contract, subsequent to the termination of all contractual relations between' the government and Logan, it becomes our duty to apply the evidence to this situation of affairs.For, it must bo borne in mind that this is not the case of the violation of an ordinary contract between two individuals and the assessment of the damages resulting therefrom; . but the ease of a sub-contractor with the government having- his relations cut off by reason of -his voluntary abandonment of the mail service, aud the renewal on that account of the contract of the original contractor with the government, in 'his stead.

In the case of n violation of a contract, the obligee would, ordinarily, have a rigid of action to compel specific performance onr the paid of the obligor, or claim corresponding damages for his failure to do so; and he would have the right to take up the-con tract where the obligor left off, and carey it -to completion for the punióse of diminishing his loss.

In -this case, however., the contract and sub-contrac-t with the-government aro • recognized as being entirely independent of each other, and that each one must be exercised separately -and distinctly.

In Lawton vs. Waite, 79 Northwestern Reporter. (No. 4) p. 321, the Wisconsin court dealt -with quite a similar contract' of a subcontractor for the transportation of the United States mail in the-city of Milwaukee, from July 1st, 1895, to June 30th, 1899, and in the course of their opinion, it said;

“While many acts which might constitute negligence are alleged, “they are not characterized expressly as either wrongful -or negli«-°’-'-i- “and they are all asserted to constitute breaches of one, or the- other “of the tivo contracts, which are not set out in extenso. Again; the “sureties are joined as defendants, and judgment demanded, against “them jointly with their principal. Ruch demand can., of course, be “supported only on the ground that their principal has breached some “requirement, of the contract, performance of which the sureties have “guaranteed. They have no other connection either with the plain— “tiff or with the acts and events out of which his claim arises.

Their liability must arise, if at 'all* from the strict words of the written contract which they have signed.

Considering, then, first, whether a cause of action ex contractu “is set forth against these demurring defendants, it must be observed that many of the contractual undertakings alleged in the complaint have no application to them, but only to the other defendauts“who executed the original contract with the United States.

The demurrants’ duty and liability must be found in the sub “contract, which it will be noted is much narrower than the original.

* * * * * * -x-

“Wo think it plain, therefore, that no privity of contract between ‘‘the demurrants and the plaintiff is shown . They contracted alone “with E. A. Chilton (the original contractor) and not with plaintiff, “nor even with the United States, in which .contract the government “primarily, and individuals only eventually, have an interest.”

The only difference between that case and the one before the court is, the former was an action ex delicio and the latter one ex contractu.

Relations between the contractor and the government cease, as soon as a sub-contract with, another has been, made;- and when the subcontract is terminated or broken, the original contract may, be renewed and reinstated by the consent of the postal department.

Such is the precise situation here. It is true, that in -this condition of .affairs, the terms of the sub-contract may be looked into for the purpose of showing any damages that have resulted through ■the sub-contractor’s fault, or in this case, his abandonment of the service.

' Therefore, in our opinion, the statement 'in the brief of counsel, that it was in order to iirevent greater loss and damage that he felt compelled to resume his performance of his contract on the 35th of September, 1891, and continue same to its termination in 1894, is entirely inadmissable.

The proof shows — and our former opinion states — that after Logan abandoned his contract in June, 1891, the postal department employed a temporary service and carried the mails upon the account of the government, until September 15, 3891, at the expense of the subcontractor; and our opinion says, that “the postmaster general permitted the defendant, Woodlief, to resume service under his original ■contract, i. e., the contract between the defendant and the government; not the sub-contract between Woodlief and Logan.”

Thus, it appeal’s manifest, that upon Woodlief’s resumption of his original contractual relations with .the postal department on the 35th of September, 1891, with the assent and approval of the postmastei general, all contractual relations between Logan and the government, based upon his sub-contract with .Woodlief,'ceased, likewise, eo instanti.

It necessarily results that from and after that date, Woodlief operated the mails for his own account, and collected annually the contract price of four thousand, nine hundred and forty-three dollars, as stipulated, and Logan was eliminated therefrom altogether, except with respect to the damage Woodlief had sustained by his abandonment of the sub-contract.

That, inasmuch as -the plaintiff, Woodlief, had voluntarily resumed his original contractual relation with the postal department' on tihe loth of September, 1891, and thereafter conducted his contract to its final termination on the first of July, 1894, receiving and using the consideration therein stipulated, the engagement was exclusively fids own dui-ing that period of time, and that he was quite as much bound and obligated to supply the necessary equipment for the operation of idle mails, as the defendant Logan was, under his sub-contract.

As matters stood, originally, plaintiff’s contract with the govern-' ment was, that he should supply the necessary paraphernalia and •equipment, and transport the mails in the manner stipulated, and lie was therefor, to receive the price of four thousand, nine hundred and forty-three dollars per annum, and by his sub-contract, legan agreed to carry out Woodlief’s contract for that amount, less four .hundred dollars per annum.

Therefore, it seems reasonable, that when that sub-contract was abandoned, and the original contract- had been restored by consent o* both "Woodlief and the postal department, the obligation was placed upon. Woodlief to supply the necessary equipment for the transportation of the mails, at his own expense, and to receive the consideration therefor; and to recover from the defendant the annual profit of four hundred dollars that is stipulated in the sub-eon-tract for a period of three years that intervened between the 1st of July, 1891, and the 1st of July, 1894, i. e., the sum of twelve hundred dollars.

In our view, "Woodlief would be by this process placed in the same position he originally occupied under his own contract, and entitled to receive the full" measure of Üio bene lit he would have received from the sub-contract with Logan, had it continued in force, But, to place upon the sub-contract the construction which is contended for by plaintiff’s counsel, would, in our opinion, do violence to the intention and purpose of the government, as well as that of the contracting parties, and "also to the views expressed in our próvidos .decision.. ...... '

It would be to say, that as one of the consequences of the abandonment of the sub-contract, Logan must not. only furnish to Woodlief without expense, an entirely new and complete establishment and outfit for carrying- the mails for the entire term of three years, after he had resumed charge on his own account, but 'to pay all the incidental expenses thereof such ns arc enumerated, in the exhibits an nexed to plaintiff’s petition.

Tn our conception, the damage's which plaintiff is entitled to ro cover may bo stated 'in general terms to he, Cl) the cost of the temporary service of the mails during the period of two and one-half months; (2) the amount by the. government deducted from the sum duo Woodlief on account, of loss or depredation upon the mails in April, 1891, and alleged to be two thousand, five hundred and forty - eight dollars and sixty-four cents; (3) and the sum of $400 per annum stipulated in the sub-contract as the profit due the plaintiff. Woodlief.

Thus concluding, we arc of the opinion, 'that the purposes of justice would he. subserved between the parties by awarding the plaintiff a judgment against George O. Logan, (1) for the sum of one thousand, five hundred and eighty-three dollars and sixty-six cents, with legal interest from judicial demand, as the cost of the temporary service established by the government for two and one-half months, less the amount of seven hundred and eighty-five dollars, which was due Logan under his contract for two months, leaving a balance of eight hundred and eighteen dollars and sixty-six cents (818.66) due the government — this calculation -being based upon admissions of the defendants; (2) for the additional sum of two thousand, five hundred and forty-eight, dollars, and sixty-four cents ($2,548.64), as the amount which the postal department deducted from the price stipulated in the contract, as due Woodlief, on account of loss or depredation upon the mail on the---day of April, 1891, with like interest: and for the further sum of four hundred dollars per annum, for each of the three years which intervened between the 1st of July, 1891, and the 1st of July, 1894, as the amount of the profit that is stipulated in the sub-contract which Woodlief is entitled to receive with interest.

While the foregoing views are applicable to George C. Logan as principal, they are more applicable to his sureties, for the reason, that they are entitled to. a strict construction of their obligations. and nothing can be taken against them by implication or inference.

It is therefore ordered and decreed that the plaintiffs do have and recover, from George C. Logan, (1) the sum of one thousand, five hundred and eighty-three dollars and sixty-six cents ($1,583.66), with legal interest from judicial demand, subject to a credit of seven hundred and sixty-five dollars ($765.00), bearing date September 15th, 1891; (2) the further sum of two thousand, five hundred and forty-eight dollars and sixty-four cents, with legal interest from same date; (3) and the further sum of four hundred dollars per annum from the 1st day of July, 1891, to the 1st day of July, 1894; with legal interest on each installment from the termination of each year, respectively.

And it is further ordered and decreed, that there be judgment in favor of the plaintiff and against each of the sureties on the bond of George C. Logan, to-wit: (1) A. A. Woods, (2) Mrs. Linsay B. Hill, widow in community of the late Alexander Hill, deceased, and James Davidson Hill, as sole heir of said Alexander Hill; (3) and against the heirs of Samuel .Logan, five in number — each for their virile, share of the amount for which judgment is given against George 0. Logan, principal, on the basis of the obligation incurred in the aforesaid bond.

It is further ordered that the cost of appeal be taxed against the plaintiff and appellee.

Blanchard, J., concurs in the decree.

On Application for Rehearing.

Blanchard, J.

In the opinion of the court herein oh the merits it was stated, in general terms, as the conclusion of the court, and as a just settlement of this long protracted litigation, that plaintiff should' recover certain sums therein mentioned. One of these sums was tho cost of the temporary service of the mails during the period of two and one-half months and if was put at $1583.66, subject to a credit of $765. This temporary service of tho mails was at the rate of $10,000 per year, and the allowance should be for two months, which at (hat rate would be $1666.60 instead of $1583.66. The decree handed down will be corrected aecoidingiy.

Tim judgment of the court, decreed against George O. im-gan the recovery of the full 'amount of the several sums found to be due, and against each .of the sureties on the bond of said Logan, iXKwit: (1) A. A. Woods; (2) Mrs. Linsay B. Hill, widow in community of the late Alexander Hill, deceased, and James Davidson Iiill, as sole heir of said Alexander Hill; (3) the heirs of Samuel Logan, deceased, five in number — for their virile share -of the amount for which judgment is given against George C. Logan, principal. This is an oversight so far as the sureties are concerned. The judgment against them should not be for their virile share merely.

The language of the obligation is: “The said party of the second part and his sureties aforesaid do severally undertake, covenant and agree, and do bind themselves to and with the party of the first part in the sum of ten thousand dollars ($10,000) as follows: Samuel L. Logan, twenty-five hundred dollars; Alexander Hill, twenty-five hundred dollars; Winfield W. Gauche, twenty-five hundred dollars; and Alfred A. Woods, twenty-five hundred dollars.”

And the last clause in the body of the obligation is: “To the faithful performance of each and every coven-ant and agreement hereinbefore mentioned, the parties do bind themselves to the extent of the. amount herein specified, and. each of them and their heirs and personal representatives, eta.”

The law governing' obligations of this character is found in part in C. C. Arts. 2077, 2078 and 2084.

The first reads: “When there are more than one obligor or obligee named in the same contract, the obligation it may produce may bo either several, or joint, or in solido, both as regards the obligor and the obligee.”

Tho second (O. G. 2078), defining several obligations, says: "Several obligations aro produced when what is promised by one of the obligors is not promised by the other, but each one promises separately for himself to do a distinct act; such obligations, although they may bo contained in the same contract, arc considered as much individual and distinct as if they had been different contracts, and made at different times.”

The third (0. 0. 2084) declares: “Several obligations, although created by one act, have no other effect than the same obligation would have had if made by separate contracts.” * * *

Tt is thus apparent that the sureties on the bond did not bind themselves jointly, each for bis virile share of the obligation it purported, but each bound himself separately and severally to the extent of $2500 of the sime. From no one of them could more than $2500 be recovered, but as much as $2500 could be recovered from each.

It follows that whatever aggregate indebtedness may be decreed against George G. Logan, the principal on the bond, for that indebtedness his said sureties are responsible each to the extent of $2500. There could, of course, be but one satisfaction of the amount which is decreed against the principal, but to accomplish this satisfaction the sureties are each respectively bound to the extent of $2500— the amount for which each signed as surety. Each party who signed this obligation as surety said in effect: ‘Should the principal fail in his duties, I will repair the damage occasioned thereby to the extent of $2500/ The sureties stipulated and determined the extent of their liability, not for the full amount of the bond, nor for equal portions, but in certain determined and specified -amounts.

Teutonia National Bank vs. Morgan, 33 La. Ann. 735; State vs. Tax Collector, 40 La. Ann. 240.

The former decree of the court will be corrected in this regard, as also in the particular that there axe seven and not five heirs of Samuel L. Logan, who was one of the sureties.

We find no judgment was rendered in the lower court against Winfield W. Gauche, .one of the sureties, 'and presume from that he was not cited.

Defendants complain that the decree awards interest on $400 for each of the years 1892j 1893 and 1884, to'run from the first day of July of each year. They urge that interest on these sums should be awarded only from, judicial demand> and point to the prayer of the petition as sanctioning this.

It is true that the prayer of the petition asks for interest from judicial demand on certain sums set up in the petition as being due. But the court, judging the case on the issues made by the pleadings and guided by the evidence adduced, determined it on different lines, and, in so doing, reached the. conclusion that as to the $400 per year for the three years mentioned, the obligation of defendants toward the plaintiff included as well the interest on those installments from their maturity, as the principal. On this theory, the interest on those sums might well have been calculated and 'added to the principal, and award made for ihe 'total sum (bus found due, with legal interest thereon from judicial demand. Instead, judgment was .■given for the sums aforesaid, with interest from the time same became duo respectively.

Wo do not think injustice has been done and the former decree in this particular should not be disturbed.

The same is true as to an additional credit which defendants urge should be allowed George C. Logan.

The case was gone over carefully and an adjustment reached of which defendants can not justly complain. What they represent in referent e to this credit is only by way of suggestion. We do not understand that they ask for a new trial because of the refusal to recognize it. The judgment in plaintiff’s favor should not he reduced by furl,her credits.

It is, therefore, ordered that the former decree herein rendered oil June 12, 1899, be amended so as to read as follows: It is adjudged an'd decreed that the plaintiff do have and recover of George 0. Logan the sum of one thousand, six hundred and sixty-six and 66-100 dollars, with legal interest from judicial demand, subject to a credit of seven hundred and sixty-five dollars paid as of date September 15, 1891: also that he do have and recover the further sum of two thous- and, five hundred and sixty-eight and 64-100 dollars, with legal interest; from same date; and ¡also the further sum of four hundred dollars per annum for each of the years 1892, 1893 and 1894, with legal interest on the first from July 1, 1892, and the second, from July 1. 1893, and the third, from July 1, 1894.

■ It is further ordered, etc., ‘that plaintiff do have and recover severally of and against the sureties on the bond of said George O. Logan, l.o-wit: Alfred A. Woods, Alexander Hill, deceased (represented herein by Mrs. Linsay B. Hill, widow in community, and James Davidson Hill as sole heir) and Samuel L. Logan, deceased (represented herein by his heirs as named in the petition of plaintiff), the sums, with interest, herein decreed against George O. Logan —this judgment to bo operative against the said Alfred A. Woods up to the sum of twenty-five hundred dollars and no more; against Mrs. Linsay B. Hill, widow, and Jas. Davidson I-Iill, together, up to the sum of twenty-five hundred dollars and no more; and against the heirs of Samuel L. Logan, seven in number, up to the sum of twenty-five hundred dollars and no more — with the stipulation that there shall he but one satisfaction-of the entire amount due plaintiff.

It is further ordered, etc., that, there be judgment against defendants in solido for the costs of both courts.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,011.
    Mrs. Kate R. McKeon vs. Sumner Building and Supply Company.
    Syllabus.
    .i. Nor a Special or Local Act. — Act 180 of 1894 is not obnoxious to Art. 46 of the Constitution, as its scope and effect do not come within the prohibition of the article.
    2 A General Law. — The law attacked on the ground of unco'nstitutionality 1b not, as charged, a local or special law Indirectly repealing a general law.
    3 Notice. — The lq.w not'being local or special, there was no necessity of giving thirty day’s public notice prior to its passage.
    ON APPEAL from the. Civil District Court for the Parish of Orleans, Bilis, J.

      W. ri. Benedict, for Plaintiff and Appellee.

      Rice <£ Montgomery, for the Sumner Supply Co., Ltd., and the Lambou and Noel Lumber and Manufacturing Company, Limited, Defendants and Appellants.

      Edwin T. Merrick, as Amicus Guriae.

    Argued and submitted April 4, 1899.
    Opinion handed down April 17, 1899.
    Rehearing refused June 96, 1899.
   The opinion of the court was delivered by

Breaux, J.

This is a suit brought by plaintiff against u number of defendants, for judgment ordering the cancellation of their liens recorded at their instance against her property.

The facts are, that plaintiff contracted in writing with a builder ■to construct and erect a building on her property for three thousand, nine hundred and seventy-five dollars, to be paid in installments; the last, installment to be paid fifteen days after completion and delivery of the building. All the installments were paid. Plaintiff failed to have the contract recorded, and she required no bond from the contractor. A number of claims were registered as liens upon her property.

J. B. Schneider, the -builder, who was the debtor primarily of the parties who had registered their claims, went into insolvency.

At this phase of affairs, plaintiff brought this suit against each of the creditors of Schneider, who claimed liens on her property, alleging that Act 180 of 1894, under which they asserted a right, was null 'and void, being special and local and not general, in violation of Articles 46, 4Y and 48 of the Constitution, as not having been passed after notice required prior to the enactment of special 'and local legislation.

The creditors, made defendants, severally answered, claiming the amount due them by Schneider, -and a lien for its payment on plaintiff's property.

The statement of facts shows, in addition to the foregoing, that the claim of the Stunner Building and Supply Company, Limited, was for building supplies furnished Schneider and used on the building.

The judge of the District Court, in a carefully prepared opinion, reviewed the grounds presented, and decided that Act 180 of 1894, is unconstitutional ánd void, and that defendants’ claim 'against plaintiff, based on that act -alone, is without right. Their demands were rejected.

From the judgment, the defendants appeal.

In the first place, we deem it proper to summarize the statute attacked. It requires that any person who makes a contract for an amount of -one thousand dollars, or any amount exceeding that sum,’ with -a builder or contractor, shall require of the builder or contractor solvent security in a sum equal to the amount of the contract for the payment -of material men and workmen, who shall have a right of 'action against the security; and should the owner fail to require security of the contractor and to record the contract, with the bond and seeuritj-, in the mortgage office, within a week after the contract is signed, and before the work is commenced, the owner shall be liable for all balances due th^ workmen and material men; -and, further, they have, under the terms of the statute, a lien on the land and building, if they record their' sworn bills, whether the original contract is recorded or not; provided, the bond shall not continue in force for more than ninety days 'after the building has been completed or repaired; and provided further, that all mortgages and privileges recorded against the land and building, previous to signing the contract, shall have precedence over all other liens; This statute is applicable to all cities of 'a certain class having more than fifty thousand inhabitants. The number, by a subsequent statute, was reduced to not less than ten thousand inhabitants.

• This statute, on the grounds before stated, plaintiff insists is unconstitutional.

, Upon this state of the facts and the law, the issues arise between the plaintiff and the defendants, the former denying that defendants have a cause of action. This denial is based, in the first place, on the theory, that, in passing the act to which we before referred, the General Assembly passed a local or special law “providing or changing the methods of collection of debts.” (Art. 46 of the Constitution.)

■ We find it obvious that two conditions must arise in order to justify the conclusion, on the grounds alleged, that the statute violates Art. 46 of the Constitution.

•• It must appear, in order to sustain the objection, that- the statute is “local” or “special;” or that it makes'provision for collecting debts or changing the methods of their collection.

1st. We think it obvious that the statute is neither “local” nor ’“special;” and makes no provision, as charged, for collecting debts, or changing the manner of effecting collection. The intention was, as relates to statutes for collecting debts, or changing the manner of "their collection, wo gather from the language used, to uphold uniformity in legal procedure throughout the State, and to prohibit the ■'forms of 1-a.w established for the good administration of justice from being limited to a locality, or made to subserve personal or special 'interest. It excludes from the scope of special or local legislation formalities intended, or rules of practice passed, to protect the rights of persons. The rules, under the Code, regarding- citation, appearance, judgment, appeal, must he general and not special. That is the extent of the Constitutional limitation.

' The statute assailed in this case is not one at all relating to civil 'actions; it appertains to contracts for building -and additional security to workmen and material men.

The objection to the statute, on the ground that it is obnoxious to Article 47 of the Constitution, is founded upon the mistaken assumption that it is a local or special statute.

The moment it becomes obvious that this assumption is erroneous and that the statute is not local or special, the objection made here must fall; there remains nothing further to be considered.

A classification based on contracts of, and exceeding, one thousand dollars, in cities of not less than the number of inhabitants stated, does not render the law local or special. Such a classification has frequently been recognized as possible, under Articles similar to those in our present Constitution. With the exception of the lower limit in the amount and the lower limit of the number of inhabitants in cties in which the statute was made inoperative, the statute is general.

If a lawr is limited in some minor details, dee-med proper by the legislator in carrying out a public policy, but otherwise general in its application, it is neither local nor special.

Here it is operative in every city of a certain specified number. Tt embraces those that have now, or will have, the stated number, in the future.

As to the amount, or lower limit of the building contracts, it is also genera], save as to an hmount which the legislator must have considered comparatively inconsiderable.

A law may be general without being universal.

2nd. Plaintiff’s last pleaded objection relates to public notice. It presents a question which has been passed upon in a number of cases. The “local” or “special” character of a law in the sense of the Constitution is not a new subject. Plaintiff insists that the statute 180 of 1894 is “special” or “local,” and that the enactment by the legislature should have been preceded by a thirty days’ notice, the notice requisite before adopting a statute, which is “special” or “local.” As relates to the objection that it is local, for the reason that it is limited (plaintiff asserts) in its operation to cities of a. stated number of inhabitants, and to contracts of a. thousand dollars or more, classification is not prohibited.

The Supremo Court of Ohio in a similar ease said: “A const! lu-tional provision that requires all laws of a general nature to have uniform operation throughout the State is complied with in a statute applicable to all cities of a certain class having not: less than one bundled thousand inhabitants, though, in fact, there be but one city in -the State of that class.” 18 Ohio, N. S., 85.

This decision is sustained, we think, by the weight of judicial authority, and it is a complete answer to the objection here urged by plaintiff.

These are the issues presented by the pleadings. This court has-repeatedly decided that: the pleadings should set forth the groundsupou which a law is attacked .for uneonstitutionality.

We, however, extended our examinatiou further and considered the different points argued in support of plaintiff’s position. After attentive consideration, we. .are not inclined to the opinion that the statute, attacked is unconstitutional on’any of the grounds argued at bar -and in the briefs filed.

It was argued in-brief that the act’is broader than the title, and, in consequence, void. Similar objection to the title has been frequently made, and there are, in consequence, many decisions upon the subject.

The Constitutions of a number of States contain similar provisions to those contained in the Constitution of this State regarding the necessity of expressing ’the object of the act in the title. •

The weight of the decisions under these provisions is not favorable to a close or strict construction, as relates to the question involved, for the very good reason obviously, that a close construction might result in setting aside many laws in our statute book not considered unconstitutional. In carrying out this view, the Supreme Court of . this State.has decided, in substance, that it is sufficient if the title of the act is framed in substantial accordance with the clause o-f the Constitution, requiring that the title should express the object of the bill when it is offered, and of the statute after its enactment. The-jurisprudence is similar in courts of other States of the country. Thus, -an act, in general terms, “to establish a police government for the City of Detroit,” was within the purpose of the Constitution. The act, under that brief title, provided for the police government of a city: officers were authorized to be-appointed, as well as a number of duties created, and other general objects, not. foreign and incongruous to the object -announced in the title, were -accomplished. The court held that the -act was constitutional. The People vs. Mohany, 13 Michigan, 496.

In Cooley on “Constitutional Limitations.” p. 176, we find, m 1.1k following, a summary of views expressed in a number of decisions: “The generality of a title, is, therefore, no objection to it so long as it is not made to cover legislation incongruous in itself.”

The title of the statute in the ease before us, is general; there is enough, however, to sufficiently indicate its purpose. While every act must stand upon the title as passed, and no amendment can be made to cure a defect growing out of its deficiency as to its title, subsequent action, extending- the effect of the statute, as was done in this ease, shows that the legislature did not consider the statute, as originally passed, defective, or that any concealment of -the object to pass the statute had been practiced, as relates to title. Had the legislature been taken by surprise, it would not -have, in all probability, enacted the amending- statute 123 of 1896. 1.Í -the original law had been adopted by them -through dexterous management of interested persons and by concealing its intention, the legislature had long warning time between the dates of the two statutes. “The purpose of the provision is accomplished, when, in general terms, the object of tbe statute is indicated by the title. To require every end and means necessary -and convenient for the accomplishment of this general object to be stated in the title, would greatly embarrass and delay legislation.” Ib. 175. See also, Oil Company vs. Matheson, 48th Ann., 1323, in which a question very similar was decided. Municipality vs. Michoud, 6th., Ann., 605.

Moreover, the chief object being to prevent surprise and insure deliberation before passing acts, frequently the broadest and fullest title would not -accomplish the purpose and prevent surprise.

We quote the following on “Legislation” by a French author:

“Maás peut on se dissimulor l’influence et l’utilité de ee concert deliberé, de-eette puissance invisible, par Xaquolle sans scoousse r-t sans commotion les peuplos se font justice des m-auvaises lois et qui semble proteger la societé centre les surprises faites au legislateur et !e legislateur con tro lui méme.”

The remedy against the surprise referred to above is by legislation and not by forced judicial construction.

The right of property and -of person gives rise to another ground for argument by counsel for plaintiff, though not specially pleaded.

The .owner, .counsel contends, as relates to right of person or to -property, Mot-having contracted with the creditors of the builder, may well claim that it is a hardship to hold her bound by contract to which-she is not a .party. . .- .;

The.principle is-correct; usually one is not bound save as : he chooses 1o bind himself. Here, this right, as we interpret, is not impaired by the statute; the owner is free to contract as he pleases. The statute only points out, that the amount of the indebtedness, tinder the contract, (not one cent more) shall be paid as indicated; i. 0., the labor and the price of material, before any amount be paid or advanced to the contractor or builder.

As related to the workmen, provision was made by Act 134 of 1880, that in the event of non-payment of the laborer for his work, as just stated, he had a privilege under registry of his claim against the owner.

The law, giving the builder’s right to the laborer and material man to hold the owner of the property responsible, by serving then-attested account upon the owner, has never been questioned. The workmen’s toil being considerable and their earnings frequently small, the legislature, by the act of 1894, deemed it proper to secure their payment, first by privilege, and afterward, by a bond. To this there can he no serious objection. The material man has managed, in some way, to receive equal attention. Why it is, is no concern of onrs, as interpreters of the legislative will, as expressed in the statutes. We are not asked to separate the two, and declare that the statute is constitutional as' to the former, and not -as to the latter; although, as to the reason of the statutes, they perhaps should not be considered as being on the same plane.

To the extent that -a privilege is granted or a bond is required, to secure that much of the contract needful to pay claims of laborers and material men, the legislator has made his (the owner’s) property responsible as far as relates to the privilege, and, personally, if he fails to require a bond. He is not the guarantor of his builder, his whole responsibility is limited to requiring a solvent bond under the contract.

If the bond could not be required, because it is not the debt of the owner, hut of the contractor, for the same reason a privilege on the property of the owner, who is not debtor, would fall. That view has never been seriously entertained by any one.

In order to avoid the similarity between the two rights, privilege or recovery on bond, it is contended that there is a groat difference, inasmuch as privilege arises out of an existing debt for work actually performed and hot for anything to be done in futuro. The argument will not bold, in our view. Privilege Las no date. It takes its rank by reason- of the favor granted by the legislator to the claim without reference to date. It is frequently made retroactive in its effect Thus, tlie funeral charges, the last possible as relates to date, none the less prime all other debts. The same regarding the workmen’s privilege; it primes mortgages and certain other privileges, and is retroactive. .

The bond required is not retroactive and binds no one save foi work actually done. It is intended to enable the workman to collecf his own to the extent the owner is bound. It operates as a substitute for garnishee proceedings.

“By implication, the contractor is tho agent of the owner, and by implication the owner consents to the privilege of the workingman on his property to the extent that he owes the contractor.” Jones vs. Great Southern Fire Proof Hotel, 86 Fed. Reporter, 378.

The Legislature has embodied in the statute here attacked the implied agency referred to in the quoted passage, and the supposed consent of the owner by requiring a bond to insure payment, although there is no contractual relation with’ the owner.

"Some of the statutes sought to diminish the grasp of this legislation regarding liens by limiting the aggregate of such liens to the original contract price, or by providing for a contractor’s bond for the .benefit of the owner with summary remedy thereon or by both. 'In the same decision the contractor is declared to be agent of the owner, and as such authorized to employ labor.’’ Ib. 379.

Thus, we see, that, from the point of view of this decision, the bond is given as much for the protection of the owner as to secure the workman.

Right here, we must say that, if it be correct to hold, as has been held in a number of decisions, that a statutory lien may be created in respect to future contract, it follows that bond to secure work to he done may be required, as it is by statute 180 of 1894.

Statutory liens have been declared constitutional in many of the States; it follows that statutory bond is equally as legal.

Tho decision from which we have just quoted reviews the jurisprudence of the different States, and from it we gather that the constitutional invalidity of such statutes has never been judicially declared. The jurisprudence of France, under articles similar to those of the Civil Code of this State, arrives at the same conclusion horn another direction.

“Les ouvriers sont done le.s ayaus cause de I’-entrepreneur.” Laurent, vol. 26, p. 96.

Again, as relates to both the owner and the builder: “Les ouvriere ne sont pas des tiers.” Ib., Vol. 26, 96.

In this view, the protection and the security are about the same under the jurisprudence of both countries.

To say the least, the question is not at all free from doubt. Although we have followed the questions involved to this point and have given them our most careful attention, we deem it advisable in this ease to rest our conclusion upon the issues presented by the pleadings arising under the articles of the Constitution before cited.

With reference to doubt, it. suffices to say, that doubt regarding the constitutionality of a law will not warrant setting it aside as unconstitutional. It must be made quite evident that it is unconstitutional, in order to warrant interference by tho judiciary.

We are constrained to remand this case for the reason, chiefly, that. further evidence regarding, at least, some of the claims of defendants, should be introduced.

We are informed that Schneider, the contractor, went into insolvency, and that in his schedule-all the parties to these proceedings were placed as his creditors. There was property surrendered.

The District Judge in his reasons for judgment states that “their general accounts, debits and credits, indicate that they had little reference to localities or buildings where the things furnished were to he used. In other words, on general account, he had, in the course of his business for years past, bong-ht from them, paying and receiving credit from time to time, and without reference to where or from whom he received the money with which he paid. All dealt with Schneider oil his personal responsibility.”

Unless defendants make it appear how much specifically is due for each material furnished, they cannot recover. Wo, therefore, remand the case only to the extent that the respective claims of each defendant should be proven and required identification made and proper credit given.

For reasons assigned it .is ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed.

It is further ordered, adjudged and decreed that the case he remanded to hear further evidence regarding the claims of defendants, and that proceedings in the case, needful to the determination of these last stated issues regarding the amount of defendants’ claims, he had.

It is ordered that appellees pay the costs of appeal

The costs of the lower court, to abide the final decision ot the suit.