On June 18, 1923, the Sixth District Building and Loan Association, as owner, made' two separate contracts with Bachemin to build for $7,100 each, two houses on Roman Street between Cadiz and Jena, on adjoining lots, one lot described as being one hundred and twenty feet from Jena and the other one hundred and twenty feet from Cadiz Street. The U. S. Fidelity & Guaranty Company signed both contracts as surety under Act No. 139 of 1922. Plaintiff in this case, who furnished material for the “Roman Street job” in the sum of $369.15, sues the contractor and his surety on both bonds for this amount. Attached to petition are ten material bills for brick, sand, lime, etc., running from October 2, 1923, to November 2, 1923, eight of which are addressed to P. J. Bachemin, “Roman and Jena Streets” and the other to him on “Roman between Jena and Cadiz Streets.”
*63After filing an exception of vagueness, ■which was properly overruled, the contractor disappeared from the suit and there was judgment by default against him for the full amount.
The surety company, having obtained the contracts and bonds sued on by a prayer for oyer, then filed exceptions of vagueness and inconsistency of demand, which were properly overruled.
It then answered admitting that it had signed as surety the contracts which had been made by the Sixth District Building and Loan Association and Bachemin — one for the account of A. Picone and the other for account of Joseph Reyer, but it urged two special defenses:
First, that it had been released by plaintiff’s failure to record its claim in the mortgage office within thirty days from acceptance of contract.
Second, that its liability on each bond was limited to the materials used in' the building which that bond covered. It finally prayed for judgment in its favor against Bachemin if the court should find that it was liable under the .circumstances.
The trial judge correctly decided with plaintiff that there was nothing in the first defense, as it had been repeatedly held that the filing of claims in the mortgage office within thirty days was not necessary in order to hold the surety. On this point see:
Shreveport Mutual Bldg. Assn. vs. Whittington, 141 La. 41, 74 So. 591.
Audubon Homestead Assn. vs. A. Stef Lumber Co. et al., 158 La. 1054, 105 So. 62.
Fidelity Homestead Assn. vs. Kennedy & Anderson, 158 La. 1069, 105 So. 64.
Madison Lumber Co. vs. Bachemin, 166 La. 1066, vol. 118, No. 5, So. Rep., p. 141.
The trial judge maintained the second defense on the ground that plaintiff failed to show how much material went in each building; that such showing was essential to maintenance of this special right granted by a special law under the doctrine of “strictissimi juris.”
The evidence shows the lots were vacant and that they were located in the middle of the block, with no dividing line between them, that goods were ordered for the Roman Street job and were delivered' somewhere on one or the other of the two lots, but no separate account was kept for the materials. There is no proof as to how much material was used in each building and the sole question before us is the necessity vel non of such proof under all the existing circumstances.
In the case of Graphic Arts Building Company vs. Union Indemnity Company et al., 163 La. 1, 111 So. 470, the plaintiff entered into a building contract for the construction of a building in the City of Shreveport on which the Union Indemnity Company furnished a bond as surety. The Koerner Engineering Company furnished certain materials which it delivered for use in the building. Thereafter, a concursus was provoked and on the trial of the case it appeared that some of the materials furnished by the Koerner Engineering Company were not used in the building. The Court, in allowing the full claim of the materialman, said:
“In these circumstances we do not think it was required of the appellant to follow up the shipment of the materials furnished and to see that all of such materials actually went into the building being constructed. * * *
“The contractor is unquestionably liable for the material furnished and delivered by the appellant and used by him. He could not be heard to deny his liability under the evidence.
*64“The liability of the surety company in this instance is coequal with that of the contractor.”
Reasoning by analogy, as the materials were not ordered specially for either job but simply for the Roman Street job, it was not legally essential for the material-man to follow up the shipment of the materials furnished by him in order to see which of the materials went into one building and which went into the other. Had the plaintiff proceeded to sue the surety company and the contractor alleging that it had furnished the goods and materials on one of the jobs only, under the evidence presented and the holding in the case of Graphic Arts Building Company vs. Union Indemnity Company, supra, plaintiff would have been entitled to recover. Therefore, it makes no difference that the two contracts and bonds are sued on. Delivery and use having been shown and no plea having been made that the bonds were exhausted, the surety, who had bound and obligated itself to pay for the materials used in the buildings in the event that the contractor failed to do so, has certainly suffered no damages.
The fact that the plaintiff alleged in its petition and showed that two contracts were made by the same surety, does not in any way prejudice the rights of the surety company. Under the provisions of Act 139 of 1922 (the building contract law, which applies in this case), the surety is limited to such defenses as the contractor could make. The contractor apparently recognized that he could not make this defense and therefore, practically confessed judgment.
If the contention of the surety company be correct, that plaintiff must show amount of material delivered on each lot, then plaintiff, under the peculiar circumstances of this case, would have had to call on a surveyor to ascertain the dividing line between the two lots as there was nothing to show the boundaries. The surety company is in exactly the same position as if there had been only one contract and one bond and he certainly is not damaged as the contractor admittedly owes the indebtedness. The contractor could not possibly urge such a defense because he, of all men, knows what material was used in each house. The law was intended to protect the material furnisher and it specifically provides that the surety company can urge no defense which the contractor cannot urge. To permit the surety company to escape liability on such a narrow technicality would largely nullify the purpose and intent of the law and would be contrary to the spirit and purpose of the act as shown by many decisions of the Supreme Court and the other appellate courts of this State.
In Haynesville Lumber Co. vs. Casey et al., 165 La. 1067, vol. 116, So. Rep., No. 559, the court said, on page 560:
“It was not required of the plaintiff to show that every plan sold and delivered to the contractor for use in the school building was actually so used. If that were the rule in actions by materialmen against the contractor and surety, then the furnishing of a bond to secure materialmen would be an idle formality.”
And in Fidelity Homestead Association vs. Kennedy & Anderson, 158 La. 1059, 105 So. 64, the Court said this:
“* * * but the Legislature may well have found that sureties on bonds given in judicial proceedings or on building contracts, ‘or otherwise,’ often resist payment of just claims against them upon the flimsiest of pretexts; and by technical pleas and groundless defenses do often delay payments beyond all reasonable limits * *
*65The Supreme Court, in the case of Madison Lumber Co. vs. Bachemin et al., 166 La. 1066, decided July 2, 1928, Southern Reporter, vol. 118, page 141, in an exactly similar suit where a different material furnisher had sued the same contractor and same surety for material furnished for these very two houses, gave judgment for plaintiff. It is true that in that case the court said there was no doubt that the lumber sold and delivered for each job was actually used on that job, but the court found no irregularity in combining the two contracts and the two bonds in one suit.
Defendant cites the case of Silver vs. Harris et al., 165 La. 83-91, 115 So. 376. We do not think that case in point, as the plaintiff there was a labor foreman and only one contract was involved in that special suit.
For above reasons, the judgment appealed from is reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Clifford F. Favrot Supply Co., Inc., and against the defendants, Paul J. Bachemin and the United States Fidelity & Guaranty Company, jointly and in solido, in the full sum of three hundred sixty-nine and 15-100 dollars ($369.15), with legal interest from November 6, 1923, until paid, and all costs.
It is further ordered, adjudged and decreed that there be judgment in favor of defendant, United States Fidelity & Guaranty Company, over and against the defendant, Paul J. Bachemin, in the full sum of three hundred sixty-nine and 15-100 dollars ($369.15), with legal interest from November 6, 1923, until paid, and all costs.