Janssen Catering Co. v. Abadie

• Decision Date: 01 December 1924
• Docket Number: 24694
• Citation: 157 La. 357,102 So. 428
• Court: Louisiana Supreme Court
• Parties: JANSSEN CATERING CO. v. ABADIE

102 So. 428

157 La. 357

JANSSEN CATERING CO. v. ABADIE

No. 24694

Supreme Court of Louisiana

December 1, 1924

Appeal from Civil District Court, Parish of Orleans; Wynne G Rogers, Judge.

Action by the Janssen Catering Company against Lawrence A. Abadie. Judgment for plaintiff, and defendant appeals.

Affirmed.

Lazarus Michel & Lazarus and Emile Pomes, all of New Orleans, for appellant.

J. M Quintero and John C. Davey, both of New Orleans, for appellee.

OPINION

THOMPSON, J. ROGERS, J.

This case presents solely an issue of fact. The suit is for $ 4,366, less a credit of $ 297.50, being the price of certain goods, wares, and merchandise sold by the plaintiff to the defendant and situated at the time of delivery, which was on October 1, 1919, in the building at No. 120 Royal street, this city.

The sale of the property was evidenced by two written contracts signed by the plaintiff and the defendant and which contracts contained a description of the property sold with the price of each article stated separately and specifically.

The evidence abundantly, if not conclusively, establishes that the defendant at the time of signing the contract, or shortly thereafter, accepted delivery of the property after a thorough examination and inspection by his duly authorized manager. The sale was a cash sale, that is to say, the price was to be paid by the defendant at the time of delivery, but the plaintiff indulged the defendant and made no demand for payment until the first of the month following the sale.

During this 30 days or more, the defendant used the property and made no complaint to the plaintiff as to his failure to get all that he purchased, or that the property was not what he bought, or was not as represented, except as shall hereafter be referred to.

The only reason alleged by the defendant for his refusal to pay the price when it was demanded of him is that a roll heater which was included in the sale at $ 100 was taken out of the premises and replaced with an old heater which was absolutely useless and necessitated the buying of a new heater by the defendant. The evidence of the plaintiff is to the effect that the heater in the building was not included in the sale and that it was understood that he was to remove the heater and to deliver another larger and much better one at the same price; that he did remove the heater and did deliver the other one. The contention of the defendant was sustained by the court, and he was allowed a credit of $ 100 on the judgment upon returning to the plaintiff the heater which defendant refused to accept. The defendant is therefore without cause for further complaint on that...