BLANCHARD v. SONNEFIELD et al., 116 F. 257

SHELBY, Circuit Judge, after stating the case as above, delivered the opinion of the court. If it be true that the contractors failed to comply with their contract, that fact would not be a complete defense to their action. Under the law of Louisiana, a suit may be maintained upon a building contract, although the work be defective or unfinished; and the remedy of the defendant in such case is for reduction of the price agreed upon, to the extent of damages sustained by reason of the defective performance. Cairy v. Randolph, 6 La. Ann. 202; McClure v. King, 15 La. Ann. 220.

In such case the defendant may reconvene for damages sustained by the contractor’s failure to comply with his agreement. Hill v. Penny, 15 La. Ann. 212; Civ. Code La. art. 2769. By the' terms of the contract, the contractors were to be paid in five different payments,—four as the work progressed.

The fifth payment (the one involved in this suit) was to be made 15 days after the building and works are all completed, delivered, and accepted by Blanchard; “said payment to be made on the certificate of Bridges & Snyder, architects; said certificate to be final and conclusive that the work done warranted said payments.” In the second

section of the contract the contractors agreed that they would do the work in strict accordance with the plans and specifications, and deliver the same to Blanchard, clean and “in good condition and complete, on or before the first day of November, 1901.’’

Section 4 provided for an insurance policy on the property, to be procured by the contractors, and concludes with these words, “It being understood that the works shall be at our risk until accepted by you or your assigns as a whole.” Tins idea is repeated in the specifications, made part of the contract, wherein the contractors agree to properly protect their work during its progress, and “to repair any damage to their work, and deliver the building broom clean and in perfect repair.” Construing the contract as a whole, it requires the contractors to deliver the building completed according to the specifications and in perfect repair.

The contract, we think, clearly shows that Blanchard was not required to receive the house in a defective condition; that it was to be delivered in good condition, completed according to the specifications. Such being the contract, Blanchard having interposed a plea that the plaintiffs had failed to construct the building according to their contract and the plans and specifications, and claiming to have been damaged by such failure in the sum of $5,000, it seems to us clear that he should have been permitted to offer proof tending to sustain his plea.

It appears from the record that he offered to show by several witnesses the defective character of the building after- it had been completed and tendered to him, and that this evidence was objected to on the part of the plaintiffs as to any work done prior to October 4th, when the last payment was made, for the reason that the defendant had paid the architects’ estimate tendered him on October-4th. This objection was sustained by the court, and Blanchard excepted, and this ruling is assigned as error.

If it be conceded—a question which- we do- not decide—that the certificate of the architects was conclusive as to the condition of the work at the time the payment was made on October 4th, that would not be sufficient to exclude the evidence, for by the terms of the contract the work as a whole must be in good condition when Blanchard is called on to accept it. The record does not show that the certificate calling for the fifth and last payment was ever issued by the architects.

The fifth payment was to be made on that certificate 15 days after the building and works are all complete, delivered and accepted by Blanchard. The certificate authorizing the fifth payment is the only one which was to relate to the condition of the building at the time it was to be delivered and accepted. The evidence offered and rejected tended to show that the contractors had not completed the house according to the contract, and that they did not deliver it to Blanchard completed and in perfect repair.

It was admissible on the issues raised by Blanchard’s general denial of the plaintiffs’ petition, and also to support his reconvention. We think the circuit court erred in refusing to receive the evidence offered. The judgment of the circuit court is reversed.