Typhoon Fan Co. v. Pilsbury
| Decision Date | 02 July 1928 |
| Docket Number | 28481 |
| Citation | 166 La. 883,118 So. 70 |
| Court | Louisiana Supreme Court |
| Parties | TYPHOON FAN CO. v. PILSBURY |
Original Opinion April 25, 1927, Reported at 166 La. 883.
On the Merits.
In suit No. 26041 on the docket of this court, entitled A. L Pilsbury v. Typhoon Fan Co., 162 La. 81, 110 So. 96, plaintiff obtained a judgment against defendant company in the full sum of $ 2,250, maintaining the writ of attachment therein issued, and ordering that the property seized be sold, and that plaintiff's claim be paid bye preference over all other creditors. This judgment was affirmed on appeal in Pilsbury v. Typhoon Fan Co., 162 La. 81, 110 So. 96.
On March 9, 1921, A. L. Pilsbury entered into a written contract with the Typhoon Fan Company for the purchase of two fans with equipment at the price of $ 6,000. A clause in this contract reads as follows:
"It is further agreed that you may give back this equipment to us two years from date, and we have hereby agreed to pay you the sum of $ 2,700 for the entire equipment."
One of the fans was not installed, and the amount to be refunded was reduced to the sum of $ 2,250.
In suit No. 26041, A. L. Pilsbury alleges his right to return the equipment within two years from the date of the contract and amicable demand made in vain upon defendant company to redeem the equipment, and to refund to him the amount due him under the contract.
In the answer of the Typhoon Fan Company in suit No. 26041, it is admitted in article 6 that --
"Plaintiff has requested that he be refunded the sum of $ 2,250 and that defendant has refused said amount, and has advised plaintiff the reasons for said refusal, and repeatedly called plaintiff's attention to the conditions of the written contract filed herein and made a part of plaintiff's petition, which contract provides that said refunding will be made on the 9th day of March, 1923, on the plaintiff's returning of said equipment." (Italics ours.)
Defendant company, in suit No. 26041, further alleges in its answer that:
"Plaintiff has not complied with said contract, and does not allege compliance in his petition, while defendant has fully complied with the written contract made with herein defendant." (Italics ours.)
The only relief prayed for by the Typhoon Fan Company in suit No. 26041 is "for judgment in its favor and against A. L. Pilsbury, the plaintiff herein, rejecting the said plaintiff's demand with costs."
The only issue raised on appeal in suit No. 26041, Pilsbury v. Typhoon Fan Co., 162 La. 81, 110 So. 96, was as to the right of plaintiff to introduce parol evidence to explain the intention of the contracting parties; the contention being that the terms of the contract were ambiguous as to time of compliance by plaintiff. This issue was decided in the affirmative, the right of plaintiff to sue within the two years from the date of the contract was recognized, and the judgment appealed from was affirmed, and became final October 5, 1926.
On November 24, 1926, after the judgment rendered in suit No. 26041 had become final, the Typhoon Fan Company instituted the present suit, No. 28480, in which it attempts to recover from defendant, A. L. Pilsbury, the sum of $ 3,200 for the fan equipment, upon the allegation that plaintiff company had demanded its delivery and defendant had failed and refused to deliver the property.
Petitioner in the present suit, No. 28480, "asks that there be judgment in its favor, condemning and ordering the defendant, A. L. Pilsbury, to deliver or return to the Typhoon Fan Company the above-described equipment, or that, alternately, upon failure of the said A. L. Pilsbury to deliver or return the above equipment to petitioner herein, that there be judgment in favor of petitioner for the value thereof, namely $ 3,200."
The demand of plaintiff was accompanied by a writ of attachment under which it was attempted to seize all of the right, title, or interest of A. L. Pilsbury in the judgment obtained by him in suit No. 144069 in the civil district court April 2, 1923, and affirmed by this court October 5, 1926, under No. 26041 on its docket.
Alleging in suit No. 28480 that A. L. Pilsbury had caused a writ of fieri facias to be issued in execution of the judgment obtained by him, and that the civil sheriff of the parish of Orleans had seized and held in his custody the fan equipment, the Typhoon Fan Company made that officer garnishee, and prayed for judgment ordering A. L. Pilsbury to deliver or return to said company the equipment under seizure, or, in the alternative, that there be judgment in favor of petitioner and against A. L. Pilsbury for the sum of $ 3,200, the value of the equipment, that the writ of attachment be maintained, and that the property or judgment be sold, and that petitioner's claim be paid by preference.
The civil sheriff answered that he did not have the judgment in his possession, but that, under a writ of execution issued in the case of A. L. Pilsbury v. Typhoon Fan Company, No. 144069 in the civil district court, he had seized certain property contained in the premises No. 1046 Camp street, consisting of office furniture, typhoon fans, shafting, pulleys, and miscellaneous articles pertaining to said typhoon fans, and that only in that case could any disposition of the property be made.
On December 2, 1926, a motion to dissolve the writ of attachment was filed by A. L. Pilsbury on the ground of the falsity of the allegations upon which the writ had been obtained. On the trial of this motion no attempt whatever was made by plaintiff company to maintain a single ground upon which the writ of attachment had been issued. On December 17, 1926, the writ was dissolved, and the right to sue for damages reserved in the judgment to A. L. Pilsbury, plaintiff in motion. From this judgment the Typhoon Fan Company appealed on December 23, 1926.
On December 3, 1926, defendant, A. L. Pilsbury, filed exceptions of no right or cause of action in suit No. 28480, and also pleaded as res judicata the judgment obtained by him in suit No. 144069 in the civil district court, and the final judgment of this court affirming this judgment in Pilsbury v. Typhoon Fan Co., 162 La. 81, 110 So. 96.
...
To continue reading
Request your trial