There was judgment, however, in favor of the plaintiff WESTERN DIST. for one hundred and twenty dollars, and the defendant September, 1840. appealed. Gibbon, for the plaintiff, submitted the case. Dwight, for defendant, explained the contract between plaintiff and defendant, and showed its violation on the part of the former, and urged that the defendant recover his demand set up in reconvention. Simon J., delivered the opinion of the court. Plaintiff claims six hundred dollars, as the amount of a contract for work to be done to defendant's house. He alleges, that although the work was not entirely finished, he is entitled to the whole amount of his contract, because the defendant dismissed him without any just or legal cause. Defendant pleads several matters in avoidance, and avers that he did not dismiss the plaintiff; that said plaintiff, having violated his contract by requiring defendant to pay him the whole amount to be due on the completion of the work, before the same was finished, or to give him his note for it, he, defendant, refused. Whereupon, plaintiff abandoned his work, and declared that he would not go on to complete it and fulfil his contract; that defendant, considering the contract at an end, employed other workmen to finish the work. He further pleads payment of one hundred and ninety dollars, claims compensation for the hire of negroes, and for what he has been obliged to pay to other workmen to complete the work, and prays that plaintiff's claim be rejected. The District Court gave judgment in plaintiff's favor for one hundred and twenty dollars, and the defendant appealed. The contract shows that payment for the work was to be made as it progressed, if required, and the balance when finished. It appears, from the evidence, that plaintiff began to work in February. On the 24th of May following, he signed a receipt for one hundred and ninety dollars. About the time M'CASKEN SMITH. WESTERN DIST. he signed the receipt, plaintiff told defendant that he would September, 1840. not go on with the work unless defendant would give him M'CASKEN vs. SMITH. Where a leaves his work his note for the work which was to be done. This defendant refused. Plaintiff then went to Franklin; and when he returned, he said he would go on with the work, but defendant replied that as he had broken his contract, he did not want him to finish the work. Defendant employed another workman. Plaintiff did not work any more, and what he had done was about one-half of the contract. Defendant paid upwards of three hundred dollars to the other workman to finish the work. The evidence shows, also, that plaintiff had employed three of defendant's negroes during the time he worked for him. Their hire is valued at one dollar and fifty cents per day. One of them worked for two weeks, and the two others for about two months. We are satisfied, from the facts of the case, that if the plaintiff did not complete his contract, it was owing to his own fault. He had no right, under said contract, to demand payment for the work to be done. It was to be paid for as it progressed, and the balance when finished. He asked defendant one hundred dollars, which defendant did not refuse; and when he notified defendant that he would not workman by the go on with the work, and went to Franklin, we believe job demands more than is au- defendant was then authorized to employ another workman, thorized by his contract, and on as he was not obliged to wait until plaintiff thought proper to being refused return; of this, plaintiff cannot complain, as his unreasonable uncompleted the pretensions were, from the evidence, the only cause of the difadverse party immedi- ficulty. It is certainly just that workmen should be renumeately employ rated for their labor, and that they should be protected against to complete the the bad faith or injustice of their employers, but on the other job, and the former cannot hand, they should comply strictly with their contracts; and in the present case, we are not ready to say that defendafterwards offers ant was bound to submit to the caprice of an individual, to perform the work. who, regardless of his obligations, showed himself determined A workman to violate his contract. The principles established by this nerated for his court, in the case of Hayes vs. Marsh, 11 Louisiana Reports, on his part com- 372, would, in our opinion, be applicable to this case. may other workmen recover, even if he returns and should be remu labor, but must ply strictly with his contract. With this view of the question, and as the defendant has MILES vs. HIS CREDITORS. only prayed that the plaintiff's demand be rejected, we think WESTERN DIST. the District Court erred in allowing him one hundred and September, 1840. twenty dollars. The defendant paid plaintiff one hundred and ninety dollars; the hire of his slaves amounted to more than one hundred and ten dollars, only one-half of the work was done when plaintiff declined to go on with his contract, and defendant having been obliged to employ another person, had to pay him upwards of three hundred dollars, thus he was fully compensated for the work he had done. On the whole, we are unable to discover how the judge a quo could give judgment in favor of the plaintiff. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that ours be for the defendant with costs in both courts. MILES VS. HIS CREDITORS. APPEAL FROM THE COURT OF THE FIFTH DISTRICT, FOR THE PARISH OF In a contest between the vendor and vendee, where the latter has had the use and enjoyment of the property mortgaged, he cannot demand interest on the price he has paid, in case he gives it up under the mortgage. So, in a contest between two creditors, of the proceeds of mortgaged property in the hands of a syndic, to be allowed their respective claims, the vendee who had paid part of the price, was in possession and had the use, but gave up the property, cannot claim interest, which is satisfied by the use and enjoyment of the property. This case arises on the opposition of Catharine McDonald, wife of the ceding debtor, and separated in property from him, to the proceeding of the syndic, in allowing one John L. Daniel the return of a certain sum of money, which he had advanced on the price of a house and lot, purchased by him of Miles, but to which the latter was unable to make him a title. WESTERN DIST. The opponent's suit for a separation of property, was cuSeptember, 1840. mulated with the insolvent proceedings, to determine her rights contradictorily with the creditors, and ascertain the amount due to her. MILES V8. HIS CREDITORS. Miles had purchased a house and lot in Opelousas, from B. Vanhille, for two thousand five hundred dollars, which he sold by private act to Daniel, who bound himself to pay the balance due Vanhille, and to give Miles seventeen hundred and fifty dollars; the latter obligating himself to make a complete unencumbered title to the same, within six months. Before the expiration of this time, Miles made a cession of his property. In the mean time, Daniel had occupied the house and lot, and made some improvements, and paid to Vanhille fourteen hundred and thirty dollars, on the original price, and was subrogated to Vanhille's right against Miles, for this amount. The district judge allowed Daniel six hundred dollars, for his improvement, and placed him as a mortgaged creditor, for this sum, and the sum of fourteen hundred and thirty dollars, which he paid to Vanhille, with 10 per cent, interest, on the latter sum. It was the interest, which was opposed by the wife of the ceding debtor; she having a mortgage on all his property, for the reimbursement of her claim and judgment. From this part of the judgment she appealed. Voorhies, for the plaintiff and opposing creditor. The judgment of the inferior court should be reversed, for allowing interest, as regards the issue between the plaintiff and Daniel. He had contracted to pay the amount of the claims due by Miles to Vanhille, which was in the nature of a condition precedent; and in paying them, he did but pay a part of the price he was to give, which formed part of the consideration of the transfer from Miles. 2. He was in possession of the property, which formed the consideration of the demand, under a contract of sale, and when he paid these installments, due by Miles to Vanhille, the qualities of debtor and creditor were united in him, and the demand was extinguished by confusion. Louisiana Code, WESTERN DIST. arts. 2437, 2431, 2214. 3. Daniel was immediately put in possession of the property, and in the use and enjoyment of it; and the fruits and revenues were received by him, which should compensate, and be more than equivalent for the interest on the price, or any part thereof. He should, either have been made to pay for the fruits and revenues, or his claim for interest should have been disallowed. Louisiana Code, art. 2895. 3 Loui siana Reports, 393. 4. The position of the parties here, are similar to that of parties to a venté à reméré, when the holder of the property enjoys the fruits and revenues, and the vendor enjoys the price, free from interest; the fruits and revenues, being considered equivalent to interest. Patterson vs. Bonner, 14 Louisiana Reports, 235. Pothier, contrat de venté, Nos. 416, 417, 418, 419. 4 Kent's Commentaries, 72–3. T. H. Lewis, for the appellee, Daniel. Simon, J., delivered the opinion of the court. On the 27th of October, 1835, Miles purchased of B. Vanhille, a house and lot in Opelousas, for two thousand five hundred dollars; ten hundred and sixty-two dollars were paid in cash, and the balance was made payable, one-half on the 1st of October, 1836, and the other half, on the 1st of March, 1837, with ten per cent. interest, on each payment from maturity; mortgage reserved in favor of vendor. On the 29th of March, 1836, Miles made a contract with Daniel, whereby he bound himself, within six months from date, to make a good and valid transfer to the latter, of the house and lot in question, free from all liens, &c., except he mortgage of Vanhille; in consideration of which, Daniel obligated himself to pay the balance due to Vanhille by Miles, and to pay the latter the further sum of seventeen hundred and fifty dollars, whenever Miles should make him a valid and unencumbered title to the property. Daniel, a few days afterwards, took possession of the property, and was in posses September, 1840. MILES vs. HIS CREDITORS. |