On Rehearing.
(Dec. 14, 1903.)
BREAUX, J.We restate a few of the-facts touching the issues:
Plaintiff, Neith Lodge, and Bartlett, a contractor and builder, signed a contract in which Bartlett bound himself to build a lodge building for the price of $7,459.54; and, in accordance with the terms of this contract, he executed a bond, with E. H. Vordenbaumen as surety, for its faithful execution on his part.
The building was in due time completed and accepted.
Vordenbaumen, before named, was a member of the firm of Vordenbaumen & East-ham, who had sold material to Bartlett to complete the building, for which they had not been paid.
Within 90 days after the house had been completed, they instituted suit for the amount of their claim against plaintiff and Contractor Bartlett, and they obtained final judgment against both in solido for the amount due them. Bartlett not having property from the avails of which payment can be enforced, plaintiff seeks to recover on the bond against the surety before named the *221amount, interest and costs, it was condemned to pay to Vordenbaumen & Eastham.
In the action brought on the bond against Vordenbaumen, surety, on this bond, plaintiff, the Neith Lodge, averred that it was obliged to pay an amount over and above the $7,459.54, for which Bartlett and the surety on his bond are liable.
The district court decided against Vordenbaumen, the cosurety. The decision was affirmed by the Court of Appeal. The case is now before us on writ of certiorari. We have heretofore decided that the amount is not due by the surety. The plaintiff applied for a rehearing, which was granted.
One of the grounds taken, and which was sustained by both the district court and the Court of Appeal, was that the issue was entirely one of prescription vel non.
The plea of prescription was overruled in the district court and in the Court of Appeal. We noted that in the district court the defendant in the case before us for decision pleaded an exception of no cause of action, which was, by consent, referred to the merits, and that afterward, in his answer, defendant reserved all rights he had under the plea of no cause of action, and averred that, as to the costs paid by plaintiff in the suit of Yordenbaumen & Eastham v. Neith Lodge, they have no right of action against them, because they could have avoided all costs by paying the debt for which judgment was rendered against them in the suit last mentioned.
With reference to the small amount plaintiff demands for interest which was paid to Vordenbaumen & Eastham on their' claim, they aver that they have no right of action, because Neith Lodge could have avoided piayment by paying the debt when it was due. As to the remaining $329.08, which is the amount plaintiff paid to Vordenbaumen & Eastham, and which it now claims of Vordenbaumen, surety, it avers that it was for material furnished the contractor for plaintiff building-presented when plaintiff had in its hands sufficient of the contract price for constructing the building to pay it; that they (Vordenbaumen & Eastham) made out an itemized account, swore to it, and served it on plaintiff in due time; that, instead of paying their claim, they paid out of the amount to other parties, and refused to pay them, although notified as before mentioned.
We take up, in the first place, for decision, the matter of costs and interest.
The defendant, it is true, had, through his firm, notified plaintiff to pay the amount. Plaintiff’s failure to comply with notice given by Vordenbaumen & Eastham is not ground for complaint by Vordenbaumen. surety on the bond.
The litigation was occasioned by the principal on the bond, who had bound himself to pay from the avails of the contract, which he failed to do. The contractor failed to comply with his bond, and thereby rendered his surety liable for the obligations it stipulated.
We come to the principal—the amount of $329.68. We have said that this amount was paid to Vordenbaumen & Eastham on their claim for materials to construct the lodge. Had they kept the amount in accordance with the notice of Vordenbaumen & East-ham, to which we have before referred, they would only have paid over the amount which they were afterwards compelled to pay under the court’s decree. The plaintiff has discharged its obligation in full to this firm, but what of the liability of Vordenbaumen of the firm, who is surety on the bond? Has he been released as surety by reason of plaintiff’s failure to compljr with the notice of his firm? Not having been prejudiced by this payment, he cannot very well claim to have been released.
Plaintiff, in paying as it did, obtained, to the extent of the payment, release of liability of the surety. It went to the extinguishment of the bond. Had it not been paid as it has, the surety would be liable for the amount. Instead of being charged for a balance to pay other claims, he is charged with the balance it took to pay the firm.
The conditions of the bond were that the principal, Bartlett, held himself bound to pay all “workmen, laborers and mechanics and all those who furnished supplies and materials actually used in the building.” Copying further from the bond: “Whereas, J. M. Bartlett has contracted with the above named building committee to execute, construct and complete a Lodge Building for the sum of $7,459.54 by a contract dated June 8th, 1899, hereto attached, and the condition of this obligation is that if the said J. M. Bart*223lett shall duly perform said contract, and shall comply with Act No. 180 passed by the Louisiana Legislature in 1894, and amended by Act No. 123 of 1896, by paying all workmen, laborers and mechanics, and all those who furnish supplies and materials actually used in the building," then this obligation is to be void, but if otherwise the same shall be and remain in full force and virtue.”
The firm of Vordenbaumen & Eastham, of which appellant was a member, sold the contractor material for the building, and did some of the work. On failure of the contractor this firm sued Neith Lodge, and recovered a judgment, which was paid. This the principal has failed to do and this liability was also assumed by the surety, who is, in our view, bound for this failure.
It rested upon the surety to allege and show wherein he has been released from his liability. We take up his pleading, and do not find that he has alleged such facts as justify the inference that he has been released from his obligation.
Defendant complains that the district court and the Court of Appeal failed to investigate and decide regarding an advance to the principal, Bartlett, of $3,000, which was, defendant argues, made to his prejudice as surety. This issue was not presented by the pleadings. It would have been an issue in avoidance, which could not well be considered without plea.
This was the view of the courts that have considered the case, and from that view we have found no reason to dissent.
But defendant strenuously urges that the prescription of 90 days pleaded bars plaintiff from all tight of recovery.
The bond contains contractual features which include the stipulation that the contractor was to be governed under its terms by the act of 1894.
This act looks to the security of workmen and furnishers of supplies, and contains not a word regarding the security of the owner of the building.
In stipulating as before mentioned, if the owner of the building is obliged to pay the workmen or the materialman because the contractor has broken the condition of his bond, the right still remains in the proprietor to compel performance by reimbursing him the amount.
The judge of the district court said in an elaborate opinion in this case, which we deem proper to insert here:
“The object of Act No. 180, p. 223, of 1894, as expressed in its title, is for the security of workmen and furnishers of supplies. The owner is required to exact of the contractor the statutory security, and to recover the contract. Nothing more is required of liim, and the act does not vest in the owner any right of action whatever a-gainst the security on the bond. The act, however, vests in each individual, workman or furnisher, a right of action against the security, and it is this right of action that must be exercised within the period of ninety days from the completion of the building. The act provides that the owner or builder or contractor or undertaker shall be denied the right to question the correctness of any account filed against said building, thus indicating them as defendants in the action. The whole act is permeated with the intention "of protecting workmen and materialmen in their just claims against the contractor, and they are the sole beneficiaries of its provisions, the real obligees in the bond. The act does not provide that the bond shall be executed in favor of the owner, but leaves him and the contractor to make any lawful contracts of indemnity that they may deem proper.
“In the case at bar the owner made it one of the conditions of the bond in his favor that the contractor shall pay the laborers and materialmen, as required by the act of 1894.
“Their claims were debts due by the contractor primarily, and at the same time they had the right to proceed against the owner by service of attested account. One of the conditions of the bond is that the contractor shall pay all such claims. Not having done so, and the owner having been compelled to pay one or more of them by judgment of the court, his right of action is one of reimbursement, and did not arise until the payment was made on August 1, 1901. The obligation of the contractor and surety was .one of personal warranty, and arose from the contract, and not from the act of 1894.
“The peremption or prescription provided by that statute has no application to this case.”
The time limit for bringing the action was directed to those directly protected by the bond, and to whom reference is made in the *225statutes. The principal on the bond bound himself to pay them, and they are obliged to sue to compel him within the time mentioned, but as to the owner of the building no such condition is laid down. He had the right, under the law and the terms of the contract, to pay the whole amount as it matured to the contractor, who, if he failed to pay, became liable (also the surety on his bond)—a liability which does not fall, as we take it, within the prescriptive period of the special statute before mentioned. .
This is our view of the liability. The defendant may have 'good cause to complain of his principal, who broke the condition of the bond.
The amount claimed by plaintiff, Neith Lodge, should have been paid by the contractor to whom it had been paid to be turned over to this firm.
The defendant, Vordenbaumen, as surety, bound himself, in favor of the owner, to pay this very amount.
The obligation of the surety was that the contractor would pay such claims as the one now made the basis of the suit of plaintiff.
It is ordered, adjudged, and decreed that the judgment and decree of the district court and the Court of Appeal are affirmed. The applicant’s demand is rejected, and his petition is dismissed, at applicant’s costs.