Duncan v. Boye

17 La. Ann. 273

• Court: Supreme Court of Louisiana
• Decided: December 15, 1865
• Status: Published

Opinion

Labadve, J.

The plaintiff claims of the defendant the sum of $1,959, with interest, balance on an account for house furnitures.

The answer contains, first, a general denial; denies that respondent ever ordered any of the goods which were shipped, without any solicitation and against the desire of respondent; that the goods, being sent in that way, remained the property of plaintiff; that respondent was to sell such portions of them as he could, and only account to plaintiff at wholesale Oincinnati prices for such as he might dispose of; that, after the three first invoices, a fire occurcd, in August, 1860, which destroyed defendant’s and plaintiff’s goods; and that he is not responsible, etc. He prayed to be dismissed, at plaintiff’s cost.

The District judge, after hearing the testimony, gave judgment for plaintiff, for $764 20, with interest, and the plaintiff appealed.

The case turns entirely on matters of facts and upon the credibility of witnesses. There is, however, a bill of exceptions taken by plaintiff; but it is of no importance.

There is inconsistency between plaintiff's witnesses, who were examined under commissions in Cincinnati, and those of defendant, who testified in open court. The District judge seems to have given more credit to those who gave their testimony here in court. The plaintiff has attempted to make defendant responsible for his (plaintiff’s) goods, destroyed by fire, on the ground that said defendant should have insured them as he had done his own.

There is no testimony showing that defendant had ever insured plaintiff’s goods, nor that he had been instructed to do so. Defendant cannot be made liable. Patterson v. Leake, 5 A. 547; Tonge v. Kennett, 10 A. 800; Gilly v. Berlin, 12 A. 723.

We have carefully examined the testimony, and we think that the District judge came to a correct decision, and we adojnt his judgment.

It is therefore ordered and decreed, that the judgment of the District court be affirmed, with costs.

Howell, J., recused.