On the Merits.
Ludeling, O. J,,In May, 1874, F. Del Bondio sued the New Orleans Mutual Insurance Association and Fairbanks & Gilman for the sum of six thousand dollars, rent due and to become due for certain buildings situated in the city of New Orleans. He prayed for judgment against the two defendants in the alternative. The movable property on th6 premises was provisionally seized.
The New Orleans Mutual Association in its answer admitted that it was the lessee, but it declared that the contract by which the lease had been made had been declared null by the district court in a suit between *140D. J. & D. Edwards vs. Fairbanks & Gilman, C. Cavaroc & Son, and the New Orleans Mutual Insurance Association, from which Judgment the New Orleans Mutual Insurance Association, as intervenor, had appealed to this court, and the trial of the case appears to have been continued several times to await the decision of this court on the appeal. This court reversed the judgment of the lower court and decreed the New Orleans Mutual Insurance Association was the owner of all the property mentioned in the said act. This included the lease. In that case this court said: “ By the same act Fairbanks & Gilman transferred to the insurance company their lease of the property.”
After this decree had been rendered, the defendant, the New Orleans Mutual Insurance Association, filed an amended answer, in which it alleged that the said contract was null and void, because ultra vires. After having gained an advantage by judicially alleging and maintaining that the contract was valid in the suit decided, this defendant will not bo listened to when sotting up the nullity of the same contract. It would be inequitable to do so.
It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.
Rehearing refused.
Justice Howell was recused.