On the Merits.
His H^por,;
EMILE'' GOD CHATJX,.rendered the opinion .and decree of the'Go!art>.§kS follows.:
-.jy,
The nature .of this cgse is' disclosed in the. foregoing opinion delivered on the rule to refund- costs.
, The building contract in question is identical with the ^.one considere^,in the case of Jeanerette Lumber & Shingle Company Limited, vs. A. L. Weir, Et Als., 8 Court of Appeal, p. 87, and the present plaintiffs are simply other unpaid subcontractors of Weir engaged in the construction of this -building.''
The principal defense.to the claims of the plaintiffs is to.the. effect, that.their -respective.sworn.statements were not filed, and recorded within fpity-five &ayg from the completion of the Building, as requiredby Act 134 of 1906. The sworn statement of the Gaiénníe Company was served oh November 4th and recorded on November 15th, "while that of the W. W. Garré Company was sefvéd and (recorded on November 10th.' , .
In the-Jeanerette Lumber case this same question as to .the date of completion arose and we -adhere to the con-Í elusion . therein-reached as to the binding:.:effect of the architect’s certificate. We do hot find that any of the eases cited by appellants', namely, Hale v. Willis, 3 An., 504; Rousselot v. Irwin, 8 An., 300; Louisiana Molasses Company vs. LeSassier, 52 An., 2079; Dugue vs. Levy, 114 La., 21; are applicable, for the reason, that in this, case , the''.finality. :of the. architect’s "decision is restricted to *114his interpretation of the plans and specifications and not to .their execution. ^
As to the actual date of completion, the present records of appeal contain data which establish with greater certainty than was done in the Jeanerette case, the fact that the building was not completed until the middle of October, and consequently at a date less than forty-five days preceding the dates upon which the respective sworn statements were served and recorded.
• It is shown conclusively, that the screens were not finally fitted and installed until the week ending October 16th; that plumbing work was done as late as Octobér 13th, probably as late as October 21st; that after September 25th, painters, electricians and fixture-men were still working in the building; and finally there are in the records documents over the signature of the beneficial owner, Uttley, of the apparent owner, the Eureka Homestead Society, of one of the contractors, and of the surety, the National Surety Company, dated respectively, September 29th, October 27th, October 13th, and November 3rd, attesting the fact that the work had not been completed on said dates.
“A building is not completed within the meaning of Act IS1! of 1906, until it is ready for final delivery and has been tendered to the owner and he has accepted the same, or is in default for not having done so.”
State ex rel. Homestead Co. v. Recorder of Mortgages, No. 5549 of our docket decided April 1st, 1912 (not yet reported); (9 C. A., 222).
II
The lower Court gave judgment in’ favor of W. W. ’Carre Company, Limited, ánd Graiennie Company, Limited, respectively, against the owner and surety in solido.
*115Tbe Eureka Homestead Society, the owner, can be beld for neither of these claims under the Act 134 o.f 1906, for it complied in all respects with its provisions Nor can if be held for the W. W- Carre Company claim under the general .codal provisions, for wh.en an attested statement of this claim was served upon it, there was no longer any funds in its hands belonging to Weir, the contractor. The judgment .in favor of the Carre Company must conse-, quently bp amended in so far as it condemns the Eureka Homestead Society for any part of this claim.
When'the Gaiennie Company, Limited, served its attested account upon the owner, the latter did have in its hands: funds of the contractor sufficient to satisfy the claim, but it is contended that this service failed to arrest these funds in the hands of the owner because the attested account embodied simply a statement of debits and credits arid consequently was not such as is required by R. C. C., 2772. The main claim of Gaiennie 'Company, Limited, is.based upon a contract for a fixed price for furnishing and installing the plumbing and gas fitting work, and the account which, together with the accompanying affidavit, sets forth the nature and price of the contract and the payments made thereon, is clearly sufficient. The. claim for $13.50 was for work required by the original plans and specifications but inadvertently omitted when the main contract was sub-contracted to Gaiennie & Company, Limited. The nature and amount of this item is set out in the attested account arid recovery against the owner and surety was properly allowed. But the item of $77.00 represents extra work not contemplated by the plans and specifications and for this neither the owner nor the surety, whose liability is restricted to work done or materials furnished within the limits of the plans and specifications, should have been held liable and the judg*116ment of Gaiennfe & Company, Limited, must’ be reduced accordingly. .m, . • . <• •/, ;,
III.
* In its" answer in each suit, tbe Eureka Homestead Society, the owner, incorporated what might properly be termed a call in warranty wherein it-demanded, in the alternative, .should judgment be in favor of plaintiff, that it have like judgment in its favor against the surety. Service of the' call in warranty upon the surety was neither made ;nor prayed for, nor. was issue, otherwise joined thereon. Consequently there is no merit in the complaint that the .Court erred in failing to render judgment upon this ..demand in favor of the owner, against ffhe surety. The proper, disposition of it should, however, have been a judgment of. dismissal as in case of non-suit.
Lindner vs. DelIsle, et als., 7 Court of Appeal, 202.
' ■It is accordingly .ordered and decreed that in the case of W. W. Carre Company, Limited, vs. A. L. Weir, et all, the judgment appealed from be reversed in so far as it’ decrees judgment in plaintiff’s favor against the defendant, the Eureka Homestead Society, the demand of said plainfiff as; against said defendant, being now"’ rejected' and dismissed. It is also ordered that said judgment be further amended by ¿rejecting as in case of non-suit, the demand or call in warranty of the Eureka Homestead Society against the National Surety Company, the judgment- áppéáled from being in all other respects^ affirmed, the appellants paying the costs of the lower Court and the' W. W. Carre -Company, Limited,'those incurred in this Court in.said casej * v,f' ’ '• ’ ■ ' ”
" It is -likewise'accordingly ordered'ahdf decreed that in the case of Gaiennie Company, Limited vs. A. L. Weir, et*117al., the judgment appealed from be amended in so far as it affects the defendants, the Eureka Homestead Society and the National Surety Company, by reducing the principal amount thereof from $555.25 to the sum of four hundred and seventy-eight and 25/100 ($478.25) dollars. And it is also ordered that said judgment be further amended by rejecting as in case of non-suit, the demand or call in warranty of the Eureka Homestead Society against the National Surety 'Company, the said judgment appealed from being in all other respects affirmed, the appellants paying the costs of the lower Court and the Gaiennie Company, Limited, those incurred in this Court in said ease-
Opinion and decree November 25, 1912 Rehearing refused December 23, 1912. Writ granted February 3, 1913. Decree Supreme Court May 27, 1913. (133 La., 22.)Amended in part and affirmed in part.