text:
    No. 13,540.
    State ex rel. City of New Orleeans vs. New Orleans & Carrollton Railroad Company.
    Syllabus.
    1. Act xt>3 of 188S gives to municipal corporations an additional, and more summary, remedy than had previously been afforded for the enforcement of the obligations of contracts to which private corporations are parties, and which relate to the paving, repairing, reconstructing, or care of any street, highway, bridge, culvert, levee, canal, ditch, or crossing belonging to, or under the control of, such municipal corporations.
    2. Whether the obligation sought to be enforced is made sufficiently definite by the contract, or can be made so by the evidence, to be susceptible of enforcement by mandamus, as provided by said act, is a matter to be determined by the court, in each case, as presented.
    3. The defendant corporation, having bound itself, by contract, to keep a street, upon which it operates its railroad, in good order, the city, thereafter, made a contract with a paving company, to which the defendant was a party, whereby the paving company assumed the same obligation, for a limited period, and no call was made, during said period, on the defendant, but the street was neglected and allowed to fall into a condition of abnormal disorder, requiring an unusual expenditure to put It in good order. Upon the case as presented, it is held that the city should restore the street to a condition of good order before the defendant can be required to keep it so, though the defendant, in another action, may, perhaps, be liable to contribute an amount equal to the expenditure which it might have been obliged to make under its contract.
    4. The obligation to keep a street in good order, necessarily involves repairs, and repairs may involve the use of new material, and this may be called reconstruction, but it is, nevertheless, included in the obligation to keep the street in good order.
    APPEAL from the Civil District Court, Parish of Orleans — King, J.

      Samuel L. Gilmore, City Attorney, and Walter B. Sommerville, Assistant City Attorney, for Plaintiff, Appellant.

      Dart & Kernan for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

The relator seeks by mandamus, under Act No. 133 of 1888, to compel the defendant to put in good order and repair, according to the terms of a certain contract, and agreeably to certain specifications, which are annexed to the petition, the lake side of St. Charles avenue, between Louisiana avenue and Dublin street, in the city of New Orleans. The defence is set 'out at considerable length, and will appear in the statement of the case.

The facts, disclosed by the evidence and admissions, are as follows, to-wit:—

Upon August 7, 1882, die city, by notarial contract, granted to tlie defendant a right of way, for a street railroad, for twenty-five years from Eebruary 10, 1883, in consideration whereof, the defendant assumed certain obligations^ and, among them, the following, to-wit: “To keep in good order, and condition, at all times, * * * the streets, or roadways, bordering on the neutral ground of St. Charles avenue from Lee Circle to Madison street, in Carrollton, from curb to curb, also including crossings, bridges, culverts, and intersections”, etc.

At that time the lajke side of St. Charles avenue, between Louisiana avenue and Dublin street (being the portion of the avenue which is involved in the present controversy) was an unpaved, dirt street, and defendant was obliged by its contract, merely to keep it in'“good order and condition.”

In 1892, the city, by notarial contract, of date October 13th, extended the grant, made to the defendant in 1882, for an additional term of twenty-five years from the expiration of said previous grant, and, in consideration of such extension, the defendant assumed other obligations, and, among them, the following, to-wit: “To expend not less than $150,-000 * * * in the paving, with gravel, of the wood side of St. Chernies avenue, from Louisiana avenue to ‘Madison street’, the Work to be done according to plans and specifications prepared by the City Engineer and approved by the City Council, and provision being made that any unexpended balance of said $150,000 should be used in the paving of Jackson avenue with asphalt and Belgian blocks. It was also stipulated that all the paving work should be maintained “in thorough order * * * on the notification, and to the satisfaction of the Commissioner of Public Works, during the extended term of the franchise, and that, in the event of defendant’s violation or neglect of its obligations, the city should have the right, “at its option, and by its proper iofficers, of rectifying such violation and neglect, at the cost, charge, and expense of said company”, etc.

Agreeably to this plan, the city, in June, 1893, entered into a contract with the Rosetta Gravel Company, whereby the latter agreed to do the paving, the payment for which was thus provided for; and also agreed “to keep said street, when completed, in good order and condition, for the term of five years from its completion by said contractor and acceptance by the Commissioner of Public Works and City Engineer, and to deliver the same, with the gutters, crossings, etc., at the ex piration of said five years, in perfect good order and condition,” etc. And in the contract so made, the defendant intervened and bound itself to pay, promptly, upon certificates to be issued by the city, for the paving thus to be done, and also bound itself to maintain and keep in repair that part of the avenue covered by said paving contract, “to begin on the date of the expiration of the five years, during which the said Rosetta Gravel, etc. Company, by this contract, is required to Iceep the street in repair, as provided in the contract between the city of New Orleans and the New Orleans and Carrollton Railroad Company.”

It is not disputed that the defendant paid the $150,000 for the paving so contracted for by the city, which was done under the latter’s direction and supervision; and it is not pretended that during the five years following the laying of said pavement, any demand was made upon the defendant with respect to its maintenance, nor does it appear that any such demand was made upon the Gravel Company, so that, shortly before the expiration of the five years, that portion of the avenue upon which the gravel had been laid was in an abnormally bad condition, and the president of the defendant company, upon June 29, 1898, wrote to the Mayor, calling his attention to- it, claiming that his company had been relieved of its obligation of maintenance, by the contract with the Rosetta Gravel Company, during the period covered by that contract; and concluding as follows, to-wit: “Without inquir- “ ing by whose fault this condition of affairs was caused, it is clearly “ the city’s duty to put the street in condition before asking- this com- “ pany to take charge of it. We therefore invite an immediate confer- “ enee, with a view to determining, if we can, what is the best interest “ of everybody.”

As a result of this letter, there was some conference between the officers of the city and of the defendant, in the course of which it was ascertained that the Gravel Company’s term of maintenance would not expire for several months, but nothing came of the conference, and no steps appear to have been taken to compel the Gravel Company to put the avenue in order.

The proposition of the city now is, that the defendant shall be compelled to put said avenue in the 'condition in which it would have been if it had been properly maintained from the time that the gravel was laid agreeably to the specifications which are attached to. the petition, and it is admitted that notice and demand to that effect were given and made prior to the institution of this 'suit. The evidence shows that the cost of this work would, probably, exceed $12,000.

The grounds of defense relied on, are:

3. That the obligation with respect to keeping said avenue in order, after the pavement was laid, became effective, only, on the expiration of the five years .covered by the contract between the city and the gravel conrpany.

2. That said obligation, if any there be at this time, is not sufficiently defined to authorize the issuance of the writ of mandamus.

3. That if the city has any right in the premises, it is to have the work done that it considers should be done under the defendant’s contract, and bring suit for the cost of the same.

4. That the city and the gravel company, having failed to maintain the avenue in question in good order, and having allowed it to fall into an abnormally bad condition, the work now required to put it in the condition demanded by the relator is that of reconstruction and not .of repair, or maintenance, ahd that respondent is not bound for such work, and is not bound to take charge of said avenue, for the purpose of keeping it in order, until it has first been put in order.

The questions thus presented will be considered in the order stated.

I.

The obligation of the defendant, under its contract of August 7, 1882, is plain and positive ‘Ho keep in good order and condition, at all times “ * * * the ■streets * * * from curb to curb, also including "crossings, bridges, culverts and intersections”. By the contract of October 13,1892, whereby the defendant agreed, irt consideration of the further extension of its franchise, to furnish $150,000, to be expended in gravel, asphalt and Belgian block pavement (though mainly in gravel), thereafter to be laid by the city, the defendant bound itself by the following stipulation, to-wit:

“All this paving work, both gravel and Belgian * * * shall be “ maintained in thorough order, up to grade, smooth and solid, on the- “ notification and to the satisfaction of the Commissioner of Public “ Works, during the extended term of the franchise.”

This obligation was assumed, before any contract for gravel paving was entered into by the city, in clear and specific terms, and is based upon a valuable consideration. There was no condition in the contract, of which it forms part, that the city should require the paving contractor to keep his work in repair, or that the defendant should be made a party to any paving contract that the city might enter into. But, inasmuch as the defendant had bound itself, to the city, to furnish the money necessary for such contract, to the extent of $150,000,— when the paving contract was made, it — the defendant — intervened as the party who was to be paymaster, and took upon itself the same obligations quoad the contractor that it had already assumed between itself and the city, i. e., to pay for the work. It appears that the city thought proper to require of the paving contractor (the Rosetta Gravel Co.) that it should agree to keep the avenue to be paved by it in order for five years, but it need not have done so, and if it had not been so required there could never have arisen the slightest question as to the obligation of the defendant to keep such avenue in order, since the defendant had especially agreed to keep the same in thorough order, at all times, during the extended term of its franchise; nor, if the defendant had not intervened in the paving contract, could it ever, 'with any show of reason, have been claimed that, because the city required the paving contractor to look after the work done by it, therefore, the defendant was released from its obligation, imposed by a different and independent contract, 'to keep in order the streets through which it operates its road. The question, then, arises, is there anything in the intervention referred to, from which such release is, necessarily, to be deduced? We think not! The obligation to keep in thorough order several miles of the finest avenue in a large city is rather a serious one, and must involve the expenditure of considerable money, and yet, it is not pretended that the defendant gave any consideration for its release therefrom, and it will not be presumed that the city consented, gratuitously, to such release merely because another contractor, for a valuable, and totally different, consideration, had become similarly bound. In fact it may well be doubted, whether it would accord with the spirit of the Constitution, for a municipal corporation to grant a release, under such circumstances (Const. 1879, Art. 57). Inasmuch, however, as the defendant had intervened in, and was thus la party to, the contract with the Gravel Company, though the main purpose of this intervention was, as we think, that it should assume the position of paymaster, it seemed appropriate that something should be said as to its relation to the maintenance of the work to be done, for which it was already bound, and for which the Gravel Company was'also binding itself. The president of the company, therefore, declared that “He does, hereby “ bind and obligate said company lo promptly pay, in cash, current “money, the certificates, which may be issued by the city of New Or- “ leans to the Rosetta Gravel 45 * 48 Company, for the paving and “other worle to be done in pursuance of the' foregoing contract. Also “ he binds and obligates said 'X1 48 48 company, to maintain and “ heep in repair that part of St. Charles avenue which is lo be paved “ and covered by the foregoing ctintract, lo begin on the dale of the ex- “ piration of the five years during which the said Rosetta Gravel, etc., “ Company is, by this contract, required to heep said, street in repair, as “provided in the contract between the city of New Orleans and the “New Orleans & Carrollton Railroad Company.”

The obligation, then, was that the defendant should maintain and keep in repair, etc., “as provided in the contract” already in existence between it and the city, which made it liable for such maintenance at all times, and the stipulation that it “should begin on the expiration of the five years”, during which the Gravel Company bound itself for such maintenance, was manifestly introduced upon the assumption that the Gravel Company would comply with its obligation in the premises and that it would, therefore, be unnecessary for the city to call upon the defendant. We do not understand, however, that it was the purpose of this stipulation, in the event that the paving was not kept in order by the Gravel Company, to release the defendant from its obligation with respect thereto which had been! inrposed upon it by contracts previously made, and for which it had received, and was receiving, valuable consideration. We, therefore, conclude that said obligation remained unchanged, to the extent that the city might have called upon the defendant, notwithstanding the stipulation in the paving contract, to keep the work done under that contract, and the avenue on which it was done, in order, from the time of the completion of such work.

II.

The proposition that, by the terms of its contract, the only remedy afforded the city, in case of the failure of the defendant to comply with its obligations with respect to keeping the street in order, is to have the work done, and bring suit against the defendant for the cost, can not be sustained. The remedy thus afforded is cumulative with those provided by law. The contract of October, 1892, expressly provides that the city shall have the right “at its option” to rectify the omission or neglect of the defendant, and, thereafter, to bring suit to recover the cost.

III.

The relator, as a preliminary to the bringing of this action, took the precaution to have that portion of St. Charles avenue to which the application for mandamus relates inspected by a competent engineer, accompanied by an engineer representing the defendant. These two gentlemen agreed as to the work that should be done in order to restore the avenue to a condition of good order, and their agreement is embodied in the specifications upon which the relator sues. We find nothing uncertain about this, and were it not that the work, thus called for, is, in a greater or less degree,, the result of continued neglect, for which the defendant should not be held responsible, we should find no difficulty in making the mandamus peremptory. Act 133 of 1888; State ex rel. City vs. R. R. Co., 42 Ann., 11; State ex rel. City vs. R. R. Co., 42 Ann., 550; Same vs. Same, 57 U. S., 219. In the case last cited, the Supreme Court of the United States, affirming' the judgment of this court in the matter of the State ex rel. City vs. N. O. City & Lake R. R. Co., 42 Ann., 550, said, concerning Act 133 of 1888: “That statute “ does not embrace contracts between private individuals, nor contracts “ of every description, but only those by, or under, which private corpor- “ ations, parties to such contracts, become legally bound to a parish, or “ to a municipal corporation, in reference to the paving, repairing, re- “ constructing, or care of any street, highway, bridge, culvert, levee, “canal, ditch, or crossing, belonging to, or under the control of, such “ municipal corporation. The prompt discharge of the duties imposed “ by contracts of that character is of importance to the public. Indeed “ the refusal to meet the obligations imposed by such contracts often endangers both the health and safety of the people. Delay in such “ matters may seriously imperil the interests of the entire community. “ An action at law to recover damages for a failure or refusal of the “ defaulting corporation to do what its contract obliges it to do might “ prove to be inadequate for the protection of those interests. What the “Act of 1888 does, is to give a parish or municipal corporate u an ad- “ ditional and more summary remedy for the enforcement of the obli- “ gation of any contract relating to the paving, reconstructing, repair- “ ing, or care of its streets, highways, bridges, culverts, levees, canals, “ ditches, or crossings,” etc.

We are of opinion that the purpose and effect of the statute under consideration is correctly set forth in the foregoing excerpt, and we find it unnecessary to add anything to the language used. In the cases decided by this court, and reported in the 44th Ann., pp. 64 and 1026, to which we are referred by the counsel for the defendant, it was found, that there was a lack of certainty as to the obligations sought to be enforced, and (in the ease reported at page 1026) that notice;, as required by the contract, had not been given. And, hence, it was held that the writ of mandamus ought not to be allowed. In so far as these opinions, or either of them, are susceptible of a construction at variance with the doctrine established in the earlier cases (reported in the 42nd Ann., and hereinbefore cited) that Act 133 of 1888 gives to municipal corporations an additional and more summary remedy than had previously been afforded in the cases eontemjplated in the act, they can not be sustained.

IY.

The city made no demand, as far as we are informed, upon the defendant, to keep in order, during the five years covered by the paving contract, that portion of St. Charles avenue to which this suit relates; and we infer from the evidence, that it made none on the Gravel Company, so that, at the expiration of the period mentioned, the pavement not having been maintained, was in bad condition. The defendant is hardly to be blamed for not interfering, during that time, between the city! and the Gravel Company; for, whilst it had not been released from its obligation in the premises, it had been given to understand, by the paving contract, that, for the time being, and unless otherwise notified, the city would have the avenue kept in order by the company, but, the five years having expired, and the company being eliminated, that duty now devolves upon the defendant, alone, and it professes itself, and no doubt is, ready to discharge it. It claims, however, that the condition of the pavement has, in the meanwhile, become so bad as to be, to a great extent, beyond repair, and that the work demanded is “reconstruction”, and will be very extensive and costly, and that it should not be required, to do it. Testimony has been taken upon this subject, an analysis of which is unnecessary. Some of the witnesses characterize some of the work as reconstruction, and others as repair. We are of the opinion that it is both, and that the question is immaterial to the case.

The obligation of the defendant, as it is defined in its contract, is to maintain the paving work "in thorough order, up to grade, smooth and solid, on the notification and to the satisfaction of the Commissioner of Public Works”, and to keep St. Charles avenue, from Lee Circle to Madison street, “includipig crossings, bridges, culverts, and intersections, in good order and condition at all times”; and, to comply with this obligation will, no doubt, at times, require work and new material, which, taken together, might be called reconstruction, and yet the defendant would be bound to do it in order to comply with its contract and to keep the avenue in order. The defense is not, therefore, well established in that aspect of the case, though it would be sound if the defendant were called on to build a road or lay a pavement where none had previously existed. Regarded from the point of view of the amount and expense of the work, it is, however, entitled to serious consideration., It was through no fault of the defendant that the paving was not maintained in good order, during the five years covered by the Gravel Company’s contract, and the relator has no right to impose upon the defendant the penalty resulting from its own laches, or that of the said company. It can readily be understood that property of any kind can be kept in repair at less expense, by means of timely attention, than if allowed to fall into extreme dilapidation and overhauled only at long intervals; and so, no doubt, with a thoroughfare, such as St. Charles avenue. In fact, this seems to be admitted by the learned counsel for the city, who says, in his brief, referring to the testimony of the City Engineer, to the effect that the cost of the work here demanded would amount to $12,000; “he further says that it would have been much less, “ if the street had been regularly attended to.” From which it follows, that the relator is seeking to impose upon the defendant, a burden of expense heavier than it would have been called upon to bear if the street had been regularly attended to; although it was the fault of the city and the Gravel Company, and not the fault of the defendant that such regular attention was not given. Eo'r, conceding, as we have done, that both the defendant and the Gravel Company were bound, if called upon by the city, to maintain the street in good order, the distinct announcement was made, in the paving contract, that the call was upon the Gravel Company, and that the defendant would not be expected to do anything for five years after the completion of the work under that contract, and, so far as appears, nothing ever was said or done, until the defendant’s'president called the attention of the Mayor to the matter, in June, 1898. This being the case, and the street, which the defendant agreed to keep in order, having, by the action and inaction of the city, and the Gravel Company, been reduced to a condition of extraordinary disorder, the putting of it in the order in which it is to be kept is outside of the defendant’s contract. The case would not be very different if the city had deliberately dug ditches and holes in the street, and were to demand that they should be filled by the defendant under its contract to keep the street in order. If it were shown, or admitted, that the cost of the work, which the city now demands, would not exceed the aggregate amount which the defendant would have had to pay in order to comply with its obligation of -maintenance, as contemplated by its contract, the mandamus prayed for might issue and no injustice be done; for the city can not be held to have presented that amount to the defendant. But, as the probability is that the cost of such work would be greater than such aggregate, and as neither the form of the action nor the evidence adduced enable the court to distinguish between what the defendant ought to do, and pay, and what there is no authority for requiring of it, we are of opinion that the writ was properly refused, and that the judgment appealed from should be affirmed, without prejudice to any right which the relator may have to claim of the defendant, by way of reimbursement, pro tanto, of the expense of putting the avenue in good order, such an amount as it may be able to show that the defendant would have [been obliged to expend from the date of the laying of the gravel pavement if said avenue had, thereafter, been kept in good order by it, exclusively and uninterruptedly, as contemplated by its contract of August 7, 1882, and October 13, 1892. With the reservation stated, the judgment appealed from is, therefore, affirmed at the cost of the appellant.


source: Caselaw Access Project

author: Blanchard, J. Breaux, J. Blanchard, J., Per Curiam.

license: Public Domain

text:
    No. 12,945.
    C. L. Willey vs. St. Charles Hotel Co. et al.; Otis Manufacturing Co. vs. St. Charles Hotel Co. et. als.; Connecticut Mutual Life Insurance Co. vs. Peter V. Frazer; Boyd N. Thompson vs. Peter V. Frazer; W. W. Johnson & Co. vs. Peter V. Frazer—Consolidated.
    Syllabus.
    1. The evident object of Act No. ISO of 1894 is to provide further and additional safeguards to workmen and material men for the payment of their claims, over and above what is contained in the Civil Code.
    2. The owner of the building to be constructed or repaired must see to it that his contractor gives security for the payment of all workmen, mechanics and laborers and all those who furnish materials actually used in the building.
    3. This security in its amount must equal the full amount of the contract, and the neglect or failure on part of the owner to exact this bond subjects him to personal liability for all balances due to the workmen, laborers and furnishers of materials used.
    4. This liability is independent of any privilege which, under pre-existing laws, exists in favor of workmen, laborers and material-men.
    5. The terms of the act are broad and comprehensive and include as its beneficiaries all persons who furnish materials used in the building, even those who deal with remote sub-contractors, and whether the contracts or agreements for such materials are made in or out of the State.
    6. The doctrine of the marshaling of assets, resting as it does upon equity- and natural justice, is recognized here as it is in every enligntened system of jurisprudence.
    7. A creditor having two funds amenable to his debt is not permitted, by his election, to disappoint the party having only one fund. And having placed himself in personam before the court, is subject to its jurisdiction to be made to do equity.
    On Rehearing.
    1. The property was sold and delivered in another State. The contract is classed as foreign and retains all the rights covered by the contract at the time made, and as to remedy, all remedies here for its enforcement.
    2. As to “right” under the contract, State action will not add a right to it which it did not have before it was brought into this State.
    3. Privilege and bonds do not secure the price of materials sold and delivered in another State, which is there worked up into different shapes for the interior finish and ornamentation of a house, and which, owing to the accidents of transactions and commerce, finds its way into this State.
    4. Legal interest on the amount tendered is due from the date the tender was in effect made and the amount not deposited.

      APPEAL from the Civil District Court, Parish of Orleans. — ■ Theard, J.

      James J. McLoughlin for C. L. Willey and the Otis Manufacturing Co., Plaintiffs, Appellants.

      Edwin T. Merrick for the Connecticut Mutual Life Insurance Co., Plaintiff, Appellee.

      Farrar, Jonas & Kruttschnitt for Boyd N. Thompson, Plaintiff, Appellant.

      Dufour S Dufour for W. W. Johnson & Co., Plaintiffs, Appellants.

      Denegre, Blair & Denegre for St. Charles Plotel Company, Defendant, Appellee.

      Fenner, Henderson <& Fenner for James Hay and Thos. Nicholson & Sons, Garnishees, Appellees.

      J. A. Woodville for Peter Y. Fraser, Defendant and Appellee.
    On the rehearing by Breaux, J.
   The opinion of the court was delivered by

Blanchard, J.

On January 24, 1895, the St. Charles Hotel Company, of New Orleans, let a contract to T. Nicholson & Sons, of Chicago, for the erection of the St. Charles Hotel building. The amount agreed to be paid was $2J9,321.00.

The contract was recorded in the mortgage office February 21, 1895, twenty-eight days after its execution.

One of the stipulations therein was that the contractors should furnish bond and security in the sum of $100,000.00, and the contract was not to go into force until the bond was executed. The bond was given February 11, 189'5, and recorded in the mortgage office on the 21st of that month.

On March 9, 1895, Nicholson & Sons let a sub-contract to James Hay, of Chicago, for the carpenter, wood and mill-work, materials therefor, etc., at the price of $60,000.00. This sub-contract was recorded in the mortgage office December 19, 1895.

On April 6, 1895, Hay contracted with Peter Y. Erazer, of Minneapolis, Minnesota, to supply all the mahogony mill-work and interior finish, all the quarter-sawed white oak mill-work and interior finish, all the poplar mill-work and interior finish, and cypress doors, that were needed for the hotel, with other materials, for the sum of $16,300.00,

This contract does not appear to Have been recorded in the mortgage office.

In fulfilling his contract with Hay, Erazer purchased from the Otis Manufacturing Company, of New Orleans, and from O. L. Willey, of Chicago, the mahogany and oak needed — in the aggregate about fifty-five hundred dollars’ worth.

Beyond freight charges and other small credits, Erazer paid nothing to these parties, and at the time this litigation began he owed the Otis people $2,671.70 and Willey $2,433.96.

On December 18, 1895, about the time the hotel building was completed, Willey and the Otis Company, separately, brought suit against the Hotel Company, Nicholson & Sons, Hay, Frazer, The American Surety Company and James G. Clark — the two latter being sureties on the bond Nicholson & Sons had executed in favor of the Hotel Company.

The purchase by Erazer of the oak and mahogany timber is alleged, and also that it was used in the construction of the hotel with the knowledge and consent of the Hotel Company, the contractor and sub-contractor, Hay.

It is set up that the amount of the bond which the owners required the contractors to give, was not for the sum the law required, and that because of the failure to exact the bond the law stipulated for, the owners, the Hotel Company, made themselves liable for the payment of petitioners bills for materials furnished and used in the building.

A writ of attachment was asked against Erazer, a non-resident, and averring that the Hotel Company, Nicholson and Hay, were indebted to him, they were cited as garnishees.

The prayer of the petitions is for judgment against all of the defendants in solido, that the attachment be maintained, etc.

On the 21st of November, 1895, prior to the filing of the Willey and Otis suits, the Connecticut Mutual Life Insurance Company brought an action against P. Y. Erazer for the sum of $7,965.00, with interest, alleged to be due on certain notes executed by Frazer, and averring his non-residence and that James Hay was indebted to him, prayed that a writ of attachment issue, that Hay be cited as garnishee, and for judgment against Frazer for the amount claimed, with privilege on the property attached, etc.

On December 2, 1895, Boyd N. Johnson, of Minnesota, took similar proceedings on certain notes held by him against Frazer for $2,781.41, making Hay garnishee.

And on December 5, 1895, W. W. Johnson & Oo.¡, of Minnesota, likewise sued Frazer on notes they held against him for $2,716.30, and under writ of attachment cited Hay as garnishee.

Iiay, garnishee, answered the interrogatories in the Insurance Company’s case on November 30, 1895, and in the Thompson and Johnson cases on December 9, 1895. In each he sets forth his contract with Frazer, by the terms of which he was to furnish all the interior materials for the St. Charles Hotel, annexed a copy of the contract to his answers, and stated that at the time of service of the garnishment process upon him he had paid to Frazer under the contract $9,910.44 and would owe him a balance, but could not at that time state accurately what such balance would be. He further answered that he believed by January 1, 1896, all matters between him and Frazer would be adjusted and that he would then be able, in a supplemental answer to be filed, to state exactly what moneys he held for account of Frazer. On December 24th and 27th, respectively, he filed similar answers to the interrogatories in garnishment served upon him in the Willey case and the Otis ease.

In these latter cases, the other garnishees, to-wit: — the St. Charles Hotel Company and Nicholson & Sons, answered all the interrogatories in garnishment in the negative — that they owed Frazer nothing and had in their possession no rights, credits or property of his.

On February 10, 1896, James ITay filed in the Otis Manufacturing Co.’s case a petition of interpleader. He set forth the various suits in which he had been cited in garnishment as a debtor of P. V. Frazer, and stated the exact balance he was due Frazer under his contract with him to be $6,544.25. He averred his inability to deposit (this sum in court because held back from him by Nicholson & Sons and the St. Charles Hotel Company, who had been sued directly for the amounts claimed by O. L. Willey and the Otis Manufacturing Company. He asserted that the parties pursuing him could have no possible claim against him beyond the balance he owed Erazer under his contract, which balance, as far as he could control the same, he was ready to pay to such person or persons as the court may decree entitled to same. He prayed that all the parties in interest be cited to form a concursus and to litigate among themselves in one proceeding their respective and rival claims to the fund, and for final judgment directing to whom the same should be paid and discharging him from further liability.

Following this one of the creditors who had brought an attachment suit against Frazer took a rule in erfh of the pending suits, suggesting the petition of interpleader filed by Hay and his admission of indebtedness, and asked, that an order be inade consolidating all of the suits with the case of the Otis Manufacturing Co. vs. The St. Charles Hotel Company, et als. — the one in which the petition of interpleader had been filed.

These rules were made absolute, without objection, and later, to-wit— on April 14, 1898, by agreement of counsel, all the eases were consolidated with that of O. L. Willey vs. The St. Charles Hotel Company et tils., without prejudice to the rights or priorities already acquired by the parties litigant respectively.

The case thus became a 'concursus and is an all-around fight for tire balance due to Frazer under his contract with Hay for materials, etc., furnished in the construction of the hotel building.

The balance is, as wo have seen, in the hands of the Hotel Company, wlio, being sued directly by Willey and Otis for the amount claimed by them on account of materials alleged to have been furnished and used in the building, withheld the same from Nicholson & Sons, contractors, who, in turn, withheld the amount from their sub-contractor, Hay, who owes it to Frazer, or Frazer’s creditors, as the court may determine.

None of the claimants to this fund imake any pretense of connection with the construction of the hotel building except Willey and the Otis Company.

The ’wo latter claim a lien on the building as furnishers of materials wnich entered into its construction, and, thus, as creditors of Frazer, to whom the fund is due, they claim the right to be paid out of it by preference over the attaching creditors. In assertion .of this right they filed petitions in intervention and third opposition in the case of the first attaching creditor, the Connecticut Mutual Life Insurance Company.

But they do not rest their case alone on the lien so asserted. That may be lost by failure to reduce to writing, or seasonably record contracts, etc. C. C. 2772, 2775, 3272, 3273; 48 La. Ann. 763.

They go further and ask judgment directly against the owners of the building because such owners did not comply with the provisions of Act No. 180 of 1894 in exacting a proper bond from the contractors.

All the other parties to this litigation deny the existence of the lien asserted by Willey and the Otis Company, and as to their claim to be paid by preference out of the Frazer fund, the other creditors of Frazer strenuously resist the same.

The St. Charles Hotel Company denies any liability to Willey and the Otis Company, and avers its position to be that of innocent stake holder, and, being such, contends that if any judgment be rendered against it, the same be upon such conditions as will protect it (the Company).

The only stipulation found in the contract made by the Hotel Company with Nicholson & Sons, relative to bond and security, is the following :

“The contractors bind themselves to procure and furnish the bond of some solvent surety company satisfactory to the proprietors, in the sum of one hundred thousand dollars for the faithful performance on their part of all of the stipulations of this contract, which shall not go into force until said bond is furnished.”

Bond in accordance with this was given.

On July 14, 1894 — some six months -prior to the letting of the contract aforesaid — a law was enacted entitled “An Act relative to contracts for builldings and the security of workmen and furnishers of material.” One of its provisions is that any person who makes a contract for $1,000.00 and over, with a builder or contractor to construct or repair a building shall require of such builder good and solvent security to the full amount of the contract, “for the payment of all the workmen, mechanics and laborers and all those who furnish materials and supplies actually used in the building.” And it is further expressly stipulated that “should the owner fail to require of the contractor such good and solvent security and to record the contract, with the bond and security, in the mortgage office, describing and giving the name of the security, within one week after the contract is signed and before the work is commenced, such owner shall be personally liable for all balances due to the workmen, laborers and furnishers of materials used in the building.”

Act No. 180 of 1894.

The evident object of this statute is to grant further and additional safe-guards to workmen and material-men for the payment of their claims, over and above what is contained in the Civil Code. See Arts. 2772 et seq; 3272 et seq.

It requires the owner to see to it that the person ha lets the contract to gives security for the payment of all workmen, mechanics and laborers, and all those ivho furnish materials actually used in tha building. This security, in its amount, is to equal the full amount fo:j which the contract is let; and the declaration is plain and emphatic that neglect or failure on part of the owner to require of his contractor such a bond subjects him to personal liability for all balancea that may become due to the workmen, laborers and furnishers of materials used.

This liability is independent of any privilege, which, under preexisting laws and reiterated in the statute we are construing, exists in favor of workmen and material-men.

McKeon vs. Sumner Building & Supply Co., 51 La. Ann. 1967.

Nor are the terms of the Act of 1894, so far as they who furnished materials are concerned, confined to those who deal with the contractor or his immediate sub-contractor. They are made so broad and comprehensive that they include all persons who furnish materials used in the building, even those who deal with remote sub-contractors, and whether the contracts or agreements for such materials are made in or out of the State.

The test supplied by the statute is, did the party who complains of non-payment furnish materials actually used in the building. If he did, and the owner has not complied with the statutory requirement as to the bond to be exacted from his contractor, he is liable.

Nor can he with reason complain of this, since, by exacting from his builder the bond the law calls for and seeing to its seasonable registry, and that of the contract upon which it is based, in the mortgage office, he (the owner) escapes liability.

The bond in the instant case was not such ah one, in its amount, as fulfilled the mandate of the law, nor were the contract and the bond recorded in the mortgage office within one week after the contract was signed, as the statute required.

This failure of compliance with the law developed the conditions out of which the personal liability of the Hotel Company ensues, provided it is established that the materials furnished by Willey and the Otis Company to Frazer were actually used in the construction of the building'.

The court can not permit its action to be controlled by a consideration of the consequences which may flow from the execution of a given law. That is a legislative function.

The province of courts is to construe laws as they find them and give effect to their evident meaning and intent.

The question of fact, whether or not the materials sold by Willey and the Otis Company to Frazer and for the purchase price of which they demand the amounts herein sued for, were, in the language of the statute, “actually used in the building,” arises.

These claimants brought their suit seasonably, and if their materials were actually used in the hotel building then is their case made out and they are entitled to the personal judgment they seek against the owners.

The evidence satisfies us that the lumber (mahogany aud quarter-sawed oak) mentioned on the'bills filed herein by the said claimants, was used in the construction of the building.

Willey and Klepstein, his inspector of lumber, testify to the identification, reasonably so, of his lumber in the building, and it is found in the evidence of Willey that Frazer bought lumber in the rough from him for the St. Charles Hotel, manufactured it-into finer forms and acknowledged after its manufacture that it was his lumber, and promised to give him an order for his money on James Hay and the St. Charles Hotel people. Klepstein testifies to shipping the oak, himself, for Willey to Frazer to be used in the hotel, and afterwards was at Frazer’s factory in Minneapolis and saw it being manufactured into panels, etc., for the hotel, and it was pointed out to him by Frazer as such, with the statement it was the Willey lumber.

The evidence as to the Otis Company’s lumber being used in the hotel is even, strouger.

There is, as early as May 23, 1895', the letter of Rotcha, Frazer’s agent, enclosing an order for mahogany “for the St. Charles Hotel” and making mention of Sully, the hotel architect, to whose test of inspection the lumber would have to be submitted. The written order for the lumber, enclosed in this letter and signed by Frazer, after mentioning the lumber wanted, number of feet, etc., says “for the St. Charles Hotel.” Then there is a letter from Frazer to the Otis Company, dated September 18, 1895, in which he encloses them his notes at 60, 90 and 120 days to cover his account with them, and states “my understanding is that the lumber was not to be paid for until I received the last payment on the St. Charles Hotel, but I send these notes thinking you can use them in the meantime, and the day of payment will not be put off so long.”

The testimony of Roland Otis is to the effect that he sold mahogany lumber to Frazer with which to supply the interior work of the hotel building and that it was used for that purpose, he having identified it in the building. This is corroborated by Huddleston, an employee of the company, and by IT. A. Otis, the president of the company. Roteha, a salesman and estimater for Frazer, testified that Frazer purchased from the Otis Company material to be used in the manufacture of interior finish for the hotel building, and that Frazer received the material, manufactured it and used it in the hotel.

There is no evidence offered by the opposition to the contrary of this, beyond a statement or two as to the difficulty of identification of mahogany and quarter-sawed oak in the building.

The deposition of Frazer, himself, was taken at the instance of the Connecticut Mutual Insurance Company. Yet not a question was asked him tending to negative the contention of Willey and the Otis Company that the lumber they sold him was used in the contraction of the hotel building.

The same thing is true of James Hay, the sub-contractor of Nicholson & Sons, and who dealt with Frazer. His depositions were taken, but nothing appears that militates against the claim of Willey and Otis that the mahogany and oak 'they sold Frazer was used in the hotel.

It follows that judgment must go against the Hotel Company for the amounts claimed by Willey and the Oti’s Company.

But the company is entitled to credit the sums, so to be paid, on the fund which is reserved in its hands as due by it to Nicholson & Sons, by them to Hay, and by Hay to Frazer. The credit extends all down the line to Frazer, who, or whose other creditors herein, are only entitled to the balance that may be left in the hands of the Hotel Company after payment of the Willey and Otis Company’s judgments.

The Hotel Company was liable to Willey and Otis, as herein found, at and prior to the time the attachments of the Insurance Company, of Thompson, and of Johnson & Go. issued, and this being so, and the claims of Willey and Otis being debts of Frazer, and the company rerserving in its hands money due through Nicholson and Hay down to Frazer, extinguishment, in the nature of compensation, to this extent took place as between Hay, Nicholson and the Hotel Company, on the one side, and Frazer, on the other. It follows that Hay was only due, at the time of the attachment, to Frazer, and Nicholson & Sons to Hay, and the Hotel Company to Nicholson & Sons, the balance of the fund of $6,544.25, owing to Frazer under his contract with Hay, after payment of the Willey and Otis claims, and this balance was all that was seized under the attachments.

The failure of the Hotel Company to exact from its contractor the bond the law required, and to seasonably record its contract and bond in the mortgage office, forced upon it the legal assumption of these debts which Frazer had contracted with Willey and the Otis Company and had failed to pay. Being thus liable therefor and judicially compelled to pay the same, the Hotel Company may use the amount thereof as a set-off pro-tcmto as against the fund in hand still due Frazer on account of his connection with the construction of the hotel building.

C. C. 2208.

Frazer’s creditors have and could seize no greater right in the fund than he, himself, had, and his debts to Willey and the Otis Company being due, under the circumstances of this case, by the Hotel Company at the time the attachments issued, and the company having in hand this fund and reserving the same through this litigation as a protection to itself, is entitled now, on payment of the Willey and Otis claims, to credit the amount of such payments on the reserved fund.

The contention may be made, that the Hotel Company, while not exacting' from its contractor the bond the law required, did in part comply with the Act of 1894 by taking a bond for a sum largely in excess of that claimed by Willey and the Otis Company, and, thus, these creditors have no cause of complaint, are protected by the bond and must look to it, and not to the Hotel Company, for payment. If there be any force in this, and if the bond in its terms suffices, as to which we pass no opinion, it is met by the suggestion that the principals of this bond are Nicholson & Sons, and if they and their surety are condemned for the debts instead of the Hotel Company, in whose favor the bond was executed, the result would be exactly the same, for the Nicholsons and their surety could claim the same set-off as against the reserved fund that we hold the Hotel Company may.

This is so because the Hotel Company, if relieved of liability, could deliver the reserved fund in its- hands only to its ¿contractors Nicholson & Sons, through whom, and through Hay, sub-contractor, it would ordinarily descend to Frazer to whom it is due. But if Nicholson & Sons are required to pay the Otis and Willey claims, because of the liability resulting- from their bond to the Hotel Company, then could they credit the amount so paid on the fund and would owe Frazer, or his creditors, only the balance thereof. And this same right would exist in favor of the surety on the bond. C. C. 2211.

The question next arising- is what disposition is to be made of the balance remaining from the reserved fund after payment of the Willey and Otis judgments.

Three attaching creditors claim it. Those holding the junior attachments attack the right of the senior attaching creditor to it, on the ground that the principle of the marshaling of assets should be applied and enforced in this proceeding, and that if this is done this creditor (the Connecticut Mutual Life Insurance Company) would take nothing.

It appears that the Insurance Company’s debt against Frazer is secured by mortgage on valuable real property situated in Minneapolis, Minnesota. This property, or the more valuable part of it, is Frazer’s home there — the house and lot where he resides. But the homestead right is waived in the mortgage act and this is permissible under the laws of Minnesota. Other creditors of Frazer, without mortgage and waiver of homestead, can not make the property amenable to their claims. The Insurance Company may, however, under the law of Minnesota, its debt being- due, seize and sell it, in foreclosure of its mortgage, in forty-two days.

Frazer, the common debtor, is insolvent and was so prior to the inception of this litigation. He made an assignment under the insolvent laws of Minnesota.

Being in insolvent circumstances he assigned his claim against Jair.es Ilay for material furnished in the construction of the St. Charles Hotel, not to the parties from whom he had purchased the material, but to the Insurance Company, which concern, it seems, had a local domicile in Minneapolis. Whereupon the attorney there of the company hastened to New Orleans, with the result that suit was brought here and Hay garnisheed.

The company claims under the attachment thus made and not under the assignment.

This creditor, then, holding to its mortgage right, which constitutes one fund, has seized for the same debt, in a remote State, another fund belonging to its debtor.

As first attaching creditor it claims a privilege on this latter fund and priority of right to be paid out of it. If this be permitted, and the debt is satisfied, it relieves Frazer’s home property in a distant State at the expense, of other creditors of his who are here invoking the aid of the courts in the assertion of just rights.

Just there arises the demand for the marshaling of assets.

Lord Eldon said a long while ago that the marshaling of- assets meant “where a person.having two funds shall not by his election disaxipoint the party having only one fund.” Aldvide vs. Cooper, 8 Ves. 308.

' The doctrine of marshaling of assets rests upon equity and natural justice.

There is no express law in Louisiana governing the same, but, because our courts, are courts of equity as well as of law (C. C. 21), it is recognized here as it is in every enlightened system of jurisprudence.

The District Court had, and this court has, the jurisdiction to deal with the parties before it as law and equity require. Hayden, Syndic vs. Yale & Bowling, 45 La. Ann. 367.

Where a court is called upon to enforce a right it may avail itself of its jurisdiction over the person to do justice relative to a subject matter beyond its territorial jurisdiction. And this is so even though lands be affected by the decree. McDowell vs. Reed, 3 La Ann. 391; 45 La. Ann. 368.

The Insurance Company, in the instant ease, by the institution of its attachment and the seizure of a fund subject to the jurisdiction of the court whose aid it invokes, brought itself within the limits of that jurisdiction and amenable to its decrees by process in personam, quoad the enforcement of any right it seeks here. That is to say, having invoked the aid of the court here to seize under writ of attachment certain credits of its debtor located here, it brought itself within the jurisdiction of the court to that extent that the court may say to it, “before you are permitted to make amenable to your claim the fund here as to which you had no other status than that of ordinary creditor on a footing with other ordinary creditors seeking to be paid out of the same fund, you must first proceed to exhaust your recourse against the property in Minnesota upon which you exclusively have a mortgage or pledge. And should any balance remain due to you after such action in Minnesota, then you will be heard here to assert your claim to be paid such balance by priority, as first attaching creditor, out of the fund here.”

See Cole vs. Cunningham, 142 Mass. 47; 134 U. S. 107.

We maintain the authority of this court to restrain persons, who come within its territorial limits and submit themselves to its jurisdiction, from doing anything abroad, which, if done, would work hardship and injustice on others here equally entitled to the protection of the court and who are equally invoking its aid. And, on the same grounds, we maintain its authority to deny to such persons its (the courts) aid to do what is sought to be done here until such time as they cease to abstain from doing abroad that which, if done, would prevent injustice and hardship to others here who seek the protection and aid of the court. Phelps vs. McDonald, 99 U. S. 298; Massie vs. Watts, 6 Cranch, 148; Pennoyer vs. Neff, 95 U. S. 714; Corbitt vs. Nutt, 10 Wall, 464; 11 So. Rep., 777; 45 La. Ann. 372; Story’s Eq. Juris., §§ 899, 900.

In the first case cited (99 U. S., 298) it was held that “although a court of equity has not within its territorial jurisdiction the real or the personal property which is the subject matter in controversy, it may, having the necessary parties before it, compel, by appropriate process, the performance of every act, which, if done voluntarily by them according to the lex loci rei sitae, would give full effect to its decree in personam.” And, further, it was said (p. 308) : “Without regard to the situation of the subject matter, such courts consider the equities between the parties, and decree in personam according to those equities.”

. We hold, therefore, that the Connecticut Mutual Life Insurance Company is in court for all purposes connected with Frazer’s indebtedness to it, in so far as the collection of that indebtedness may affect any party to the suit.

It has placed itself in personam before the court and is subject to its jurisdiction to be made to do equity. Its debtor, Frazer, is insolvent. The company is a secured creditor, with real estate mortgage security at the place of their common domicile. The creditor must first exhaust its security in Minnesota and apply the proceeds to the diminution of its claim before it can litigate to final determination here its rights to priority of payment, over other creditors, out of the fund of which the court here is seized.

And for this purpose a reasonable time should be given it.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered in the first instance, it is now adjudged and decreed that C. L. Willey and the Otis Manufacturing Company do have and recover of Peter Y. Frazer and the St. Charles Hotel Company severally the sums mentioned in their petitions respectively, with interest as therein stated and costs of both courts incurred in the suits brought by said Willey and said Otis Company — the same to be paid but once.

It is further ordered, etc., that the St. Charles Hotel Company, upon paying the amounts herein awarded against it, is entitled to credit the same upon the fund of six thousand, five hundred and forty-four and 25-100 dollars reserved in its hands, and to have an acquittance therefor as against Nicholson & Sons, James Hay and Peter Y. Frazer; that Nicholson & Sons are entitled to an acquittance therefor as against James Hay and Peter Y. Frazer; and that James Hay is entitled to an acquittance therefor as against Peter Y. Frazer and his creditors.

It is further ordered, etc., that the balance of said fund, left over after satisfaction of the judgments of Willey and the Otis Manufacturing Company, shall be paid by the St. Charles Hotel Company, through Nicholson & Sons, to James Hay, to be deposited, by the latter, in his capacity as garnishee, in the judicial deposit fund of the trial court, there to remain subject to the further order of the court.

It is further ordered, etc., that further proceedings, against the sum so deposited, by the attaching creditors, the Connecticut Mutual Life Insurance Company, I3oyd N. Thompson and W. W. Johnson & Co., be suspended for the present, and that the said Connecticut Mutual Life Insurance Company be given a reasonable time in which to exhaust its recourse against the Minnesota property mortgaged to it, as hereinbefore set forth, before seeking to subject said fund to payment of its claim, and that whatever sum is realized from the mortgaged property in Minnesota be credited on the indebtedness of Peter Y. Erazer to it as herein declared on.

It is further ordered, etc., that this cause be remanded to the court a qua to be proceeded with according to the views herein expressed and this decree — it being the intention that the three attachment suits of the Connecticut Mutual Life Insurance Company, B. N. Thompson and W. W. Johnson & Co. against Peter V. Frazer remain consolidated for the purpose of trial, and that as between these litigants there be a trial on the merits de novo.

It is further ordered, etc., that the costs of this appeal, as to the said three attaching creditors, be borne by the Connecticut Mutual Life Insurance Company.

The Chief Justice takes no part.

On Rehearing.

Breaux, J.

We take up, in the first place, the case of the first named plaintiff, Willey, a lumber dealer, who claims to have furnished materials used in the construction of the St. Charles Hotel to the amount of two thousand, four hundred and sixty-three and 96-100 dollars. This creditor claims a privilege upon the funds attached, and asks that his be recognized as a lien superior to those of the other attaching creditors. This plaintiff sold lumber to Peter Y. Erazer, of Minneapolis, Minn., which Erazer manufactured at his factory and Xilaning-mill into doors, casings and articles for interior finishing of the St. Charles Hotel building, in New Orleans.

Nearly all the white oak was from Hollybridge, Miss., where it was bought by Willey and shipped to Minneapolis, where it was sold and delivered to Erazer. A small part of the oak lumber was bought by Willey, in Indiana. Willey, also, bought from Otis & Co., of New Orleans, four thousand, five hundred feet of mahogany, which he had consigned to his lumber yard in Chicago, and from his lumber yard, wlierjo he had it in stock, he sold this 4,500 feet of mahogany to Frazer, in Minneapolis. The vendors to Willey, in Louisiana, Mississippi and Indiana, had no dealing with the St. Charles Hotel Company, and Willey, himself, had no dealing either with the contractor or sub-contractor of that company. He did not even know that the St. Charles Hotel was being constructed. He (not in Louisiana, but in another State,) sold the materials to Frazer, to whom, in another State, he delivered the lumber, and to whom he looked for payment until the latter failed. Manifestly, the locus contmclus was not in the State of Louisiana. The timber was cut down and sawed into lumber outside of this State, and sold as before stated; all except the few thousand feet of mahogany which was sawed in this city, shipped from here and delivered to Willey, plaintiff, in Chicago, as before stated. No claim is made on Willey by his vendor, Otis & Co., for the price of this mahogany; Otis & Co. have, doubtless, been paid by Willey for it. All this material, the oak and the mahogany, became his, Willey’s, out of the State of Louisiana, and away from the State he delivered it to Frazer. He sold it, and completed the sale some time before it was ever shipped, manufactured by'Frazer, as before stated, to Louisiana. As between Willey, the vendor, and Frazer, the vendee, the contract is not a Louisiana contract, and it must be taken and construed according to the laws of Minnesota, where, we take it, the privilege of the furnisher of supplies is unknown. There can be no question of the locality of the contract. It was a Minnesota transaction. This being a completed transaction, under the laws of another State, it could not be reopened, and the plaintiff could not acquire a privilege by the fact of the manufactured articles being brought here.

The decisions of this court have, in the remote past, denied a privilege claimed after a contract has been completed under other laws. We deem it proper to adhere to the precedents, the correctness of which does not seem to have been questioned since.

We take up for decision the next ground upon which this claim is based, which is, that this plaintiff is entitled to rely on the protection which Statute 180 of 1894 affords, that he has furnished materials and the owner has neglected to exact a bond as required. The testimony adduced for the purpose of identifying the lumber and showing that he was a furnisher of materials, was not very satisfactory. This X>laintiff unquestionably sold to Erazer, his debtor, lumber to the amount claimed, and for which Erazer is indebted to him; but as to •whether or not it was all manufactured into doors and other items of wood-work used in the construction of the St. Charles Hotel, gives rise to a question difficult to solve.

We are informed by the creditor, as a witness, that it is possible to identify most of the lumber he sold, by the grain of the wood, and by some of the streaks and stripes, i. e., “dark infusion streaks in the wavy grain of the wood, running lengthwise of the grain in the locality in which this wood is grown.” The creditor and another witness who was in his employ, knew that some of the lumber had been manufactured, as before stated. They were not aware of the number of feet of the lumber which was thus manufactured and shipped to the St. Charles Hotel Company, nor did they know whether or not others had or had not sold the same kind of oak or mahogany to that company. Before testifying, they repaired to the building, and, on mere inspection, they discovered, as they thought, that quite a number of feet had been used in the building, which lumber they could recognize by the indicia before mentioned. The indentification of the material was far from complete, but as we do not propose to rest our decision upon this ground, we pass to the next.

Now, with reference to the statute 180 of 1891, plaintiff, Willey, did not contract with a view to the security which this statute affords, and, on the other hand, the security on the contractor’s bond, given to protect laborers and furnishers of supplies, could not have had in contemplation such a foreign contract as that into which plaintiff had entered with Frazer, at Minneapolis. Nonetheless, plaintiff having failed to recover the price of this lumber, because the purchaser failed in business, he proposes to follow the material he sold to Frazer, in its changed condition, and hold the St. Charles Hotel Company responsible for failure, as he avers, to take bond to cover his claim. The St. Charles Hotel Company is a third person as to him. There is no possible vinculum juris between the plaintiff and this hotel. He was not known when contracts and sub-contracts were entered into to build the hotel. He has a right of action against Frazer, but it is -not contemplated in furnishing this bond that it should serve as surety for all those who chose to supply manufacturers with materials in other States.

In Winston vs. Stoddard, 8 M. 135, England was the place of sale, where the law provides no privilege for-vendors. The Louisiana law grants that privilege, and if the privilege is not entirely a matter of remedy, then the contract itself is not entitled to a privilege. The privilege was considered as belonging to the contract itself, and not to the remedy for enforcing its execution. “When men enter into agreements,” said the court, “they generally do so with reference to the laws of the place where they contract^ and ought not to calculate as having their rights and claims enlarged and administered by the law of any other.”

The Legislator has inserted the statute cited in every contract in the State, as an additional right; not being a matter of remedy, we could not assert that additional right, which is in the nature of a privilege, into foreign contracts.

The mahogany of Otis & Co., used in the construction of the St. Charles Hotel, was identified with some certainty as being the same imported from Yucatan, and sawed at their saw-mill in this city, and which was afterwards sold to P. V. Frazer, in Minneapolis. The agent of Frazer, a Mr. Rotcha, while he was in New Orleans, inspected this lumber, but did not buy it while he was here. -It was out of this State that Frazer and James Hay, one of the sub-contractors, entered into a contract to furnish mill-work and interior finish for the hotel. To fill out this contract, Frazer wrote on order to Otis & Oo., to ship to him, in Minneapolis, the mahogany in question. It was shipped and delivered to him at the latter place; and after it had been worked up into interior finish, it was consigned to the St. Charles Hotel Company, in the name of Frazer, exclusively. Otis & Co. were not known in the transaction.

Be all this as it may, after the contract between Otis & Co. and Frazer had been entirely executed, and only the matter' of payment remained between them, Frazer, the debtor, was called on by Otis & Co. for payment. In answer, Frazer sent them notes for the amount, payable at the Irish-American Bank, of Minneapolis, thus confirming the locus of the transaction in Minnesota. Story on the Conflict of Laws, p. 278.

Moreover, we do not think that the bond was intended to cover such contract. If it did, then it would follow that the pig iron shipped from Pennsylvania to another State, and worked into shape to be used in the construction of a building, avouIcI burden the building with a privilege, and the contractor’s bond with an additional obligee, if the building in which it would be used were in Louisiana. If there were a privilege, or security under the contractor’s bond, then the vendor of materials, for instance, as in this case, the vendor of the mahogany logs in Yucatan, would have a right to be heard, and would control, to the extent of his interest in the distribution of funds due for the construction. The vendor of the nails used in the building, sold in a distant State, or oven the furnisher of the iron ore out of Avhich the nails were manufactured, would then have a privilege and some claim under a contractor’s bond intended to secure the laborer who works on the building and the furnisher of materials to the contractor and sub-contractor. The privilege and the contractor’s bond were not intended to secure the price of the material bought and delivered abroad and held for sale in a distant market, which may or may not find its way in a building in Louisiana.

It must be borne in mind, that, as to the remedy, the vendor who is a creditor, has full protection, but it is different where an additional right is granted by the law, and that can not be considered a part of the contract when it is made. The contract, as to rights, can not be construed so as to expand and take in more rights than it had when the property was bought and delivered in a different State. The rule is one laid down in a number of decisions, to Avhich we think we should adhere.

The one who contracts with a sub-contractor, who is himself three removes from the principal contractor, has no privilege or other similar right given by, or rather, read into a home contract by State action.

The fact that the property sold in a rough state by this sub-contractor and worked into other shapes and interior finish by a manufacturer in lumber for a hotel building, and brought into this State, does not, in this State, give rise to additional right as forming part of the contract. We can think of no reason in law why a contract should be enlarged, and made to cover property sold and delivered in another State.

State action can only affect such property as is within her limits. When, in another jurisdiction, under another system of laws, rights are acquired, they remain as acquired, save as to remedy. We do not understand that contractor’s bonds and privileges for the security of workmen and material men, are a matter of remedy. If so considered, then our conclusion would be different.

The privilege and the contractor’s bonds afford absolute right. They are not rights which arise on property when brought into this State and become nil if it chances to be taken out of this State. This would be the effect were we to hold that rights such as before mentioned, arise after the property is brought within the limits of the State. Privileges and other similar rights are strictissvmi juris. They are limited in their effect to the jurisdiction in which they arise. We are not concerned at this time with the material man residing in another State who furnishes material that is used in constructing a building here, and which has not changed shape, and is susceptible of identification. This gives rise to other issues, and other grounds for discussion. We are dealing with a state of facts different from that just suggested, and for that reason, we have arrived at the conclusion that no privilege or right under a contractor’s bond arises in this case.

We have very little to add to that which has already been said in the original opinion regarding the right of the senior mortgage creditor (The Connecticut Insurance Company). We can only rerpeat that we do not think that this creditor can recover at the expense of other creditors,' as he certainly will, if he can, as he proposes, avoid all attempt to recover on his mortgage and share in the other assets of the insolvent. The other creditors would have no recourse on the property mortgaged. An opportunity will never offer itself for subrogation to the rights of the creditors, so that their loss would be complete. We think that the features of this case render it exceptional.

The question of interest was argued at bar, and it was contended that interest was due from the date the concursus was constituted. From that date, the amount acknowledged as due should have been deposited, and not having been deposited, interest at five per cent, per annum is due thereon. In several cases this court has decided that interest was due as herein allowed, notably recently in the Molasses Company case, 52 Ann..... In our decree, interest will be allowed.

It is therefore ordered, adjudged and decreed that the order heretofore entered setting aside our original decree be recalled to the extent herein decreed, and that the judgment originally pronounced is reinstated to the extent that it ordered that the St. Charles Hotel Company is entitled to credit upon paying as therein ordered; and also in so far as it orders a stated amount to be deposited in the judicial deposit fund of the trial court subject to the order of court; also in so far as it orders that proceedings be suspended, for the present, against the fund deposited, for the purpose of enabling one of the creditors— the Connecticut Mutual Life Insurance Company — to foreclose on mortgage it holds and properly credit the proceeds of the sale, and in so far as it orders the cause to be remanded for further proceedings by the attaching creditors, the Connecticut Mutual Life Insurance Company, O. L. Willey, Otis Manufacturing Company, Boyd N. Thompson and W. W. Johnson & Company. The former decree is not reinstated in so far as it gives preference to C. L. Willey and the Otis Manufacturing Company, as furnishers of materials, leaving them thereby to their recourse on their attachment and to whatever rights they may have thereunder contradictorily with their debtor and contractor and with the other attaching creditors. It. is also ordered that the former decree of this court be amended so as to charge the St. Charles Hotel Company with five per cent, per annum interest on six thousand, five hundred and forty-four and 20-100 dollars from February 10th, 1896.

Blanchard, J.,

dissents, adhering to the original opinion and decree herein handed down by this court.

On Application of the St. Charles Hotel Co., Ltd., for Rehearing on the Question of Interest Charged Against it.

Per Curiam.

The $6,544.25, which the Hotel Company retained in its hands, was due by it to Nicholson & Sons, contractors; Nicholson & Sons owed it to James Hay; their sub-contractor, and James Hay owed it to Peter Y. Frazer, his sub-contractor.

All these parties were garnisheed in reference to this very fund, and, subsequently, James Hay filed a petition of interpleader in which he averred his inability to deposit the sum in court because held back from him by Nicholson & Sons and the St. Charles Hotel Company.

This petition of interpleader was filed in the Otis Manufacturing Company’s case, wherein the Hotel Company had been sued directly, and counsel for the company admit in their original brief that their client was made a party to this petition of interpleader. Hay prayed that all the parties in interest be cited to form a concursus and to litigate among themselves in one proceeding their respective and rival claims to the fund, and for final judgment directing to whom the same should be paid, etc.

Following this, one of the creditors, who had brought an attachment suit against Fraser, took a rule in each of the pending suits, suggesting the petition of interpleader filed by Hay and his admission of indebtedness., and asked that an order be made consolidating all the suits with the case of the Otis Manufacturing Co. vs. The St. Charles Hotel Co., et als.

These rules were made absolute, without objection, and later, by agreement of counsel, all the cases were consolidated with that of C. L. Willey vs. The St. Charles Hotel Co.

The case thus became a concursus and an all-round fight between rival creditors for the balance due Frazer under his contract with Hay for material, etc., furnished in the construction of the hotel building.

This balance was in the hands of the Hotel Company. They have held it and used it for their account and should pay interest on it. All debts bear legal interest from the time when due without any stipulation as to interest. The concursus was formed February 10, 1896. Legal interest from that date is due.

The Hotel Company could have relieved itself of liability for this interest by paying the money into the depository of the court when the concursus was formed. It is well settled that such deposit is necessary to enable the holder of a fund, covered by an interpleader, to escape the interest charge.

There was no dispute as to the amount of the fund held back, and the only excuse the Hotel Company gives, or can give, for not paying the same into court was that under their contract with Nicholson & Sons they had a right to withhold it until a clear certificate from the recorder of mortgages was produced.

This is the reason they assign for their objection to the interest charge against them.

It is true the contract between the Hotel Company and Nicholson & Sons provides that before the last payment of IS per cent, should be made, a certificate should be obtained by the contractors from the mortgage office that no liens or claims were recorded against the Hotel building, and that there should then be no legal or lawful claims against the contractors in any manner or from any source whatever for work or materials furnished for said building.

The only sum reserved under this clause was the $6,544.25 in question.

.Because of this clause the contention of the company is that, notwithstanding the legal fight going on over the fund, and notwithstanding the formation of the concwrsus in regard thereto, they are entitled to hold possession of the fund all these years without liability for interest, and may continue to hold its possession without sujch liability until the recorder’s certificate, showing no liens, etc., is produced.

The error of this position lies in the want of appreciation of the legal consequences of the deposit of the fund in court, or rather in the failure to appreciate that by making the deposit the company lost none of its rights under its contract with Nicholson & Sons.

It could and should have made the deposit, accompanied by a petition setting forth its contract rights and praying the court not to order the fund paid to any one or more of the creditors claiming it until the recorder’s certificate of cancellation of liens against the building was poduced, and until it was made to appear that no lawful claims against the contractors existed for work done or materials furnished for the building.

The court by its judgment could and would have fully protected its rights, and the company by making the deposit would have been relieved of liability for interest.

The Hotel Company was not so much entitled to hold the fund, as it was to have itself protected against liens registered against the building or asserted against the owners thereof for work done and materials furnished. The holding back of the fund was but a means to that end, and this means would not have been lost or affected by making the deposit in court.

For these reasons the rehearing applied for is denied.