The contractor for the construction of a market house for the city of Monroe having abandoned his contract, the plaintiff and others who had furnished him materials which had gone into the building recorded their claims, and brought suit against the city of Monroe.
The several suits were consolidated. The city of Monroe pleaded payment to the contractor, excepting a balance of $2,560.79, which it declared its readiness to pay to whosoever was entitled to same; and it prayed that the several plaintiffs be required to litigate their claim to said amount as in a concurso. There was judgment fixing the rank of the competing claimants in the order of the recordation of their claims.
Plaintiff contends that the city has not liberated herself by her alleged payments to the contractor, for two reasons: First, that the alleged payments were in part anticipatory, and therefore, under article 2772, Civ. Code, not binding, in so far as thus anticipatory, upon furnishers of materials to the contractor; second, that the said alleged payments were not made in money, but by the delivery of certificates of indebtedness, and that these certificates were null and void, and therefore their delivery was not a payment.
Plaintiff further contends that the balance which the city acknowledges itself to owe the contractor is the difference between the contract price and the amount 'for which the city’s certificates of indebtedness were issued to the contractor, plus the cost of completing the building; but that there must be added to the said contract price an amount of $492 for extra work subsequently agreed to be done and which was done.
Upon this last question, we cannot make out for certain from the testimony whether this $492 is included or not in the balance which the city acknowledges is still due the contractor. The trial judge found that it was, since he sustained in full the defense of the city; and the evidence does not allow us to say that he erred. As we understand the case, the city has not taken the contract price into consideration at all in determining the amount of her indebtedness to the contractor, but has made an estimate of the amount of work done upon the building by the contractor, and has admitted indebtedness in the amount of that estimate less the amount of the certificates issued to the contractor. According to this, the $492 of extra work would have been included in the estimate along with the rest of the work.
For supporting the contention that the payments were in part anticipatory, plaintiff *280argues that the burden was on the city to show the correctness of the estimates upon which the payments were made. We cannot go into these details. In the absence of any allegation, or even suggestion that the city and the contractor colluded together to defeat the claims of the furnishers of materials by making inflated monthly statements, we will presume that the estimates were as nearly correct as such estimates usually are. The- city had an interest in not inflating them; and there is no probability that she did.
So far as the invalidity of the certificates are concerned, that is a question which cannot be gone into in this case, for the reason that the certificates have been negotiated, and the holders of them are not before the court. Nor, in fact, does the record show positively how many of them had not yet been cashed by the city at the time the plaintiff recorded its claim.
Judgment affirmed.