Dewil v. Union Indemnity Co.

• Decision Date: 12 March 1929
• Docket Number: 3444
• Citation: 120 So. 654,10 La.App. 224
• Court: Court of Appeal of Louisiana — District of US
• Parties: DEWIL v. UNION INDEMNITY CO. ET AL

120 So. 654

10 La.App. 224

DEWIL v. UNION INDEMNITY CO. ET AL

No. 3444

Court of Appeals of Louisiana, Second Circuit

March 12, 1929

Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches, Hon. John F. Stephens, Judge.

Action by F. M. Dewil against Union Indemnity Company et al.

There was judgment for plaintiff and defendants appealed.

Judgment amended and affirmed.

Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellee.

S. R Thomas, of Natchitoches, attorney for defendants, appellants.

OPINION

WEBB J.

Hankins Brothers entered into a contract with the Police Jury of Natchitoches Parish and the Louisiana Highway Commission for the construction of a highway in Natchitoches Parish, and executed a bond for the faithful performance of the work and payment of claims, with the Union Indemnity Company as surety, as required by Act No. 224 of 1918, and the contractor sublet a part of the work to F. M. Dewil, who brought this action against the contractor and the surety on their bond to recover judgment against them for seventeen hundred fifty-six and 18-100 dollars, an alleged balance due him for work done under his subcontract.

On trial, judgment was rendered in favor of plaintiff against the defendants in solido for the sum of one thousand thirty-four and 60-100 dollars, with interest, from which they appeal, and plaintiff has answered the appeal, praying that the judgment be amended so as to increase the amount to that originally demanded.

It is conceded that the contract was let on a unit basis, or at a certain rate per measure for the various parts of the work such as clearing right of way, excavation, fills, etc., and that the subcontract was on the same basis, and plaintiff having attached to his petition an itemized statement showing the quantity or aggregate measure of the work done and the price, which was a factor in fixing the balance claimed, appellants contend that the proof should have been restricted to the quantity or measure shown on the statement, and that the court in arriving at its conclusion as to the balance due, was in error in considering evidence showing the quantity or measure of work done to have been in excess of that shown on the statement annexed to the petition, and they further urge that the court, in recasting the account between plaintiff and Hankins Brothers, had given plaintiff credit for items which were not proven.

Considering the matter of variance between the pleadings and the proof which appears to be the question raised by the appellants, we are of the opinion that it would have been sufficient for plaintiff to have alleged the amount or balance due him under the contract, as the defendants had knowledge of the contract and the work called for by the specifications, and could not have been surprised by evidence offered to show the work done, and the fact that the statement of...