Same Case — Ok a Re-hearing.
Yoorhies, J.The decision of the court in this cause does not come in conflict with the ruling in Hale v. Wills, 3 An. 504, as the two cases do not present the same state of facts.
When Giraud & Lewis abandoned their contract, the item of $3000 was due under the contract, and the right of the sub-contractors and material men had already attached. The subsequent failure of the contractor cannot prejudice their claims. It is true that the plaintiffs obtain judgment against the defendants, Giraud <& Leíais; but it must be borne in mind, that the church was completed according to the contract, leaving a balance in favor of the contractors, and that this amount was more than compensated by the damages, which were the result of the abandonment. It is evident, then, that at the time of the abandonment of the contract, there was really due, under the contract, the amount awarded to the sub-contractors and material men. The latter are not dependent on the future event of a strict compliance, on the part of the contractor, with the terms of the contract. The proper test is: had the contractor complied with the stipulations at the time of the falling due of the installment, for which the sub-contractors and material men had served their attested accounts ?
This was the case with the defendants in the present instance. The plaintiffs’ liability had, therefore, attached.
The court had overlooked the fact that the plaintiffs were, under the contract, entitled to a deduction of ten per cent, on the item in question. This error must now be rectified.
It is, therefore, ordered, that the judgment of this court be amended, so as to reduce to the sum of two thousand seven hundred dollars the item of three thousand dollars allowed to the sub-contractors and material men ; that, in all other respects, the judgment of the District Court be affirmed, the said appellees paying the costs of appeal.