On Application for Rehearing.
Breaux, J.The appellant takes it for granted that the court assumed that it as surety was not discharged for the reason that, under the articles of the Code, no such discharge could be claimed.
That having thus assumed to determine the relations of the parties (exclusively with reference to the articles of the Code relative *297to sureties), the court overlooked entirely the express contractual stipulations of the act of suretyship.
We must enter a kindly denial to that suggestion.
It is true that, interpreting the different articles of the Oode, we held substantially that it was a question of subrogation. That upon the obligee of the bond was imposed the obligation to protect all the securities in order that upon payment of the bond by the security it would become subrogated to all of the right plaintiff had against the principals (the contractors) of the bonds. Had the plaintiff failed to guard all of its right as payee of the bond, it would not have been in its power to transfer to the security upon payment the right which the law provides a security should have upon payment of the principal obligation. There was no negligence committed on the part of plaintiff and no act done, if the articles of the Civil Code alone be considered, which in the least impaired the rights of the securities against the principals on the bond. But we did not, as apprehended by the defendant, overlook the stipulations contained in the contract of suretyship between plaintiff and defendant. The agreement of the contractors, principals on the bond, was personal to themselves, and the fact that one continued with the work under the contract and the other chose to transfer to him his right, was not an agreement in which the plaintiff was concerned, or to which it was in any respect a party. A few days after the agreement between these contractors, one of them applied for an amount due.
The work having been done satisfactorily, the amount was paid.
The workmen of these contractors had not been paid. They had the mechanic’s privilege on the building. One of the conditions of this bond was to secure the plaintiff against the claim of “subcontractors, laborers, mechanics, workmen and furnishers.”
The payment to the contractor who remained (as the plaintiff’s officers evidently thought) to continue in good faith with the work of building, was made at the time agreed upon among all parties concerned. It appears that neither of those contractors were in good faith — one was as anxious as the other to abandon the contract and one was as indifferent as the other aaout paying their employees and workmen. The object of the bond was to protect plaintiff from any failure on the part of the contractors to pay these very claims.
These propositions are not at this time disputed by the defendant. *298The contention, now, is limited to the contract itself as being more far reaching than the articles of the Oode upon the subject, particularly as to the necessity of notice of the dissolution of the asserted partnership.
It is clear in our judgment the contract provided the surety should be notified in writing of any act which might involve a loss. Upon this branch of the case we note that the contractors individually and without suggesting a partnership signed the contract. The bond also, subsequently furnished, was signed individually, save that in the body of the bond the principals referred to themselves as co-partners. When one of the partners came to collect the third instalment he produced in support of his right to collect, a copy of the agreement dissolving the partnership authorizing him to collect amoufit due the partnership, which had been signed a few days previous. The payment made by the plaintiff to the contractor was made to him as to one authorized, as he was, to receive payment. This payment did not have the effect of prejudicing the rights which the defendant had. They remained unaffected; the amount was due. A few days after the plaintiff was notified, as required by the contract of suretyship. It is not evident that the delay caused a loss or that the necessity of giving notice was such as to render it imperative on tne part of the plaintiff to give immediate notice. It appears that everything was done in the utmost good faith until the day that contractors abandoned the work.
We have seen that immediately after the final abandonment of the building, the notice was given. We think there was a substantial compliance with the contract.
Heretofore our decree granted compensation for the services of plaintiff’s attorney.
We have given this claim further attention and after some consideration have concluded to reduce the amount of the fee.
Our decree established that plaintiff was entitled to five hundred and ninefy-eight dollars plus counsel fee.
In view of this amount and the services rendered in the case, we think that the fee should be considerably less.
There was another question, that relating to other claims recorded against the property, but not sufficiently proven on the trial to sus - tain a decree. The matter is argued by the plaintiff in the reply *299brief of its counsel. We have found no reason on this score to change our previously rendered opinion.
It is therefore ordered, adjudged and decreed that the attorney’s fee heretofore allowed be reduced to one hundred dollars.
It is further ordered and decreed, after this deduction and amendment, that our prior decree be reinstated.
The opinion heretofore rendered, and the decree are made the opinion and decree of the court, after deduction and amendment as above.