Berryhill v. Burglass

Louisiana Court of Appeal

Berryhill v. Burglass

126 So. 702, 12 La. App. 679, 1930 La. App. LEXIS 90

CourtLouisiana Court of Appeal

DecidedMarch 10, 1930

DocketNo. 11,858

StatusPublished

This text of 126 So. 702 (Berryhill v. Burglass) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berryhill v. Burglass, 126 So. 702, 12 La. App. 679, 1930 La. App. LEXIS 90 (La. Ct. App. 1930).

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Opinion

WESTERFIELD, J.

Plaintiff purchased some household furniture from the defendant, Burglass, and agreed to pay for same in installments. She defaulted in her payments and the property was sequestered, released, and then sequestered again. The last time the property was seized it was placed by the sheriff in the warehouse of the defendant. Plaintiff subsequently paid the balance due on the furniture and the seizure was released. When she endeavored to repossess it, she claimed that the articles tendered her by defendant were not the same as those which she had purchased. She refused to accept them and brought this suit for $465, the purchase price of the furniture.

The trial court denied plaintiff’s right to recover the amount sued for and ordered defendant to deliver -to plaintiff the furniture which he had tendered. From this judgment (plaintiff has appealed.

The record indicates that there is some doubt as to whether the furniture tendered by Burglass is in every respect identical with that which he had obtained possession of under the writ of sequestration. It is doubtless true that some of the articles are not the same, but we are convinced that it is equally true that, where there has been any substitution, the substituted articles were of equal value and of the same kind and character as those which they replaced. The trial judge took the trouble to visit plaintiff’s warehouse and view the furniture; consequently his judgment on this disputed question of fact is entitled to great respect.

The contention of counsel that his client was entitled to have the identical property returned to her, and not similar property of the same value, is not well-founded. The same contention was made in Mulligan vs. Yallee et al., 31 La. Ann. 375, where the court held it to be unsound.

For the reasons assigned the judgment appealed from is affirmed.

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WESTERFIELD, J.

Plaintiff purchased some household furniture from the defendant, Burglass, and agreed to pay for same in installments. She defaulted in her payments and the property was sequestered, released, and then sequestered again. The last time the property was seized it was placed by the sheriff in the warehouse of the defendant. Plaintiff subsequently paid the balance due on the furniture and the seizure was released. When she endeavored to repossess it, she claimed that the articles tendered her by defendant were not the same as those which she had purchased. She refused to accept them and brought this suit for $465, the purchase price of the furniture.

The trial court denied plaintiff’s right to recover the amount sued for and ordered defendant to deliver -to plaintiff the furniture which he had tendered. From this judgment (plaintiff has appealed.

The record indicates that there is some doubt as to whether the furniture tendered by Burglass is in every respect identical with that which he had obtained possession of under the writ of sequestration. It is doubtless true that some of the articles are not the same, but we are convinced that it is equally true that, where there has been any substitution, the substituted articles were of equal value and of the same kind and character as those which they replaced. The trial judge took the trouble to visit plaintiff’s warehouse and view the furniture; consequently his judgment on this disputed question of fact is entitled to great respect.

The contention of counsel that his client was entitled to have the identical property returned to her, and not similar property of the same value, is not well-founded. The same contention was made in Mulligan vs. Yallee et al., 31 La. Ann. 375, where the court held it to be unsound.

For the reasons assigned the judgment appealed from is affirmed.

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Bluebook (online)

126 So. 702, 12 La. App. 679, 1930 La. App. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berryhill-v-burglass-lactapp-1930.