Alling v. Bach

2 La. Ann. 746

Opinion

The judgment of the. court was pronounced.by

Koe, J.

Footnotes

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The plaintiffs sue for the price of a quantity of merchandise, alleged to have been sold to the commercial firm of Bach Sf Meyer. Payment is insisted on by Bach, the only party cited, on the ground that the plaintiffs undertook to deliver the goods in New Orleans, but have failed to comply with their contract. There was a judgment for the defendant in the court below, and the plaintiffs have appealed.

The only witness present when the contract was entered’into-states, that Meyer, the partner of the defendant, proposed to the plaintiffs to sell him a bill of goods at certain cash prices, and ship them to the house of the plaintiffs in New Orleans, where he would pay for them before taking possession, to which the plaintiffs acceded. The goods.were marked-in the name of the defendants, shipped, and a bill of .lading taken for their delivery in New Orleans, to Wm. Ailing Sf Co. The vessel upon which the shipment was made was lost at sea, and the goods never reached their destination. The plaintiffs contend that the sale was complete, independently of the contract for the delivery at New Orleans; that they have performed their part of the contract; and that the loss of the goods must be sustained by the defendant. Tho defendant, on the contrary, urges that the contract was incomplete, and that the goods were at the risk of the plaintiffs until they were landed in New Orleans.

We think that the judge below erred, and that, under tho contract proved, tho plaintiffs are entitled to recover. The sale was perfect by the assent of the parties, from the moment of their agreement for the object and the price, although no delivery accompanied the contract. As soon as the contract of sale is complete, the object sold is at the risk of the purchaser, although it may not have been delivered to him; and, if it perish before the delivery without the fault of the seller, the latter is exonerated from the obligation to deliver, but the purchaser will still be bonnd to pay the price. C. C. arts. 2431, 2242, 1903. 4 Toul. no. 59. 7 Toul. no. 202. Pothier, Contrat de Vente, nos. 308, 309. Delvincourt, vol. 2, p. 526, note 2. The only additional obligation assumed by the plaintiffs was that of shipping tho goods to New Orleans, where the defendants were to take possession upon paying the price, .and this stipulation was performed.

Itis therefore decreed that the judgment of the District Court he reversed. It is further decreed that the plaintiffs recover of the defendant, Bach, the sum of six hundred and forty-five dollars and sixty-nine cents; and that the defendants pay the costs of both courts.

Eustis, C. J. was present when the opinion was first delivered in 'this case,‘hat was absent when an application for are-hoaring was finally disposed of.