Dlnkelspiel; J.
This suit brought by plaintiff, averring that defendants bought oertain lot of mixed scrap at various times at an ■agreed prioe of $17.50 per ton, the oopper sorap at sixteen bents per pound and the brass sorap at thirteen oents per pound; there were shipped to defendants three oars of mixed sorap and four barrels of mixed brass and oopper sorap. The allegations of the petition go on ta assert that defendants paid for two of the oars of mixed sorap but never paid for the balanoe, hence they prayed for Judgment in the full sum of $444.76.
The- answer and-'reoonventional demand of the defendants admit that they bought a oertain lot of mixed sorap from plaintiff, but deny that the amdunt in question olaimed by plaintiff was owing by them, but assert the faot to be that on or before February 18th, 1920, they purchased from plaintiff a oertain lot of mixed sorap material whioh was looated at Eunloe, Louisiana, for the prioe and sum of $17.50 per ton¡ that under said oontraot plaintiff shipped them some of the sorap material, for whioh they paid, and alleging further that plaintiff contrary to their obligations under the said oontraot and in violation of its duty thereunder, separated from the said lot of sorap material, the sorap oast, whioh was the most valuable part of the lot, and sold same for $33.00 per ton, refusing to mete any further shipments from the said lot to them. That defendants were entitled to an accounting showing the proceeds of sale of the sorap oast made by plaintiff, and all othl er material comprised in the said lot of mixed sorap or otherwise disposed of by plaintiff in violation and breach of their oontraot with defendant, and therefore defendant is entitled to recover from plaintiff the difference between the proceeds of such sales and the oonvraot prioe of #17.50 per ton. Finally they pray that plaintiffs suit be dismissed at their costs and that plaintiff be ordered to account herein to defendants for [674]*674the proceeds of the afile of seid scrap cast end all other materiel amas? comprised in the seid lot of mixed scrap wrongfully converted end sold or otherwise disposed of by plaintiff, and defendants deducting the amount alleged to ha due plaintiff, whioh they state to be §343.79, in reconvention pray for a judgment for b*lance due them by plaintiff of §943.31.
An examination of this record gees to show th'-'t in the esrly part of February, 1930, the plant of the Eunice Ice and Power Company burned and thair aff-iirs wer^ taken ov--r by three liquid--tors, who are the plaintiff? and appellee:? herein. The-fire evidently destroyed the property end it became neces- ? ry to dispose of ¡test of it as scrap, and in this oenn- onion letter.- p'. sed betw-'-.n pi-inciffs and defenis-nt, vhioh .substantially l?-n tc this controversy; ana after several *.rep: rt-tory letters betw-en plaintiff? liquid: tors end defend-r.te, finally termin--te i in letter addressed to pli intiff -.is ted February 18th, 193U, wherein the defend-nt wrote:
"ilixed scrap sxaxtiKixx excluding galvanized iron,butted sheet iron pipe or boilers would be worth §17.50 per ton delivered here. Ship heavy scrap copper sixteen oentB per pound, mixed brass thirteen cents per pound." Going on in this letter they add; "Now relative to the machinery we of oourse cannot take your price on this, nor would we oare to oomeout and look at it unless we had inventory from you astiis stating exactly what you had to offer, its condition and very lowest price you will take for seme. If you will furnish this information promptly we will get one of cur men to come cut on S-turfy night to go over this property on Sunday, if you h:.ve no objection, and try to make a trade with you."
It appears th't subs- .¿uently .,1; intiff shipped bar-ril? of scrap in oars to defendant and the belenes olaimed by pi tin tiff liras the sum now sued for.
The testimony of J£r. L. B. Showers, on9 of ths liquidators, is positive th; t plaintiff and defend nt had no contract [675]*675an reference. to thee* .treneaotione," ,Hr. Showers testifies that he mot I and told the defendant- that the oompany he represented had a lot, of miscellaneous sorap for sale, asked for k price; that the prioe was given him and thst he agreed to ship at the price named.
Witness was asked this question:
(J. In the answer of the defendant It is set forth that you separated from the sorap that you had contracted to sell to them, certain oast sorap and sold it to someone else. Did you contract to sell to Marx the sorap oast to whioh they refer?
A. I did'nt separate any oast or any other material from the sorap tbet X sold them.
Q. What kind of sorap did you contrsot to sell to Marx?
A. Just e lot of miscellaneous sorap, mostly pipe and a little oast.
Q. What other material did you have after the sale to Marx?
A. Nothing hut a lot of maohinery that X had not then deoided to scrap,
Q. Did you agree to sell this maohinery to Marx?
A. I asked them for an offer on it.
Q. Did they make you any offer?
A, They told me they were not interested in it.
Q. Did you have anything available for sale besides the scrap which you aotually delivered, end the machinery they told you they were not interested in?
A. No sir. Wa had some boilers and things like that we offered to sell to them s,nd they told me they were not interested in them.
Q. I mean sorap iron oast?
A. We hs.d some brass and copper pipe whioh I sold to them and shipped out to them.
Q. Was that pert of the material sold as scrap or was that separate?
A. Well, it was all scrap.
Q, Was that paid for?
A. Not ell of it, No sir.
[676]*676Q. Does the sorap brass and. copper represent pert of this olaimt
A. Wall, they paid according to my recolleotion'up to a oertain day end at that time they 3ent their check they had net checked in the rest of the stuff and they were delaying the settlement •for thst.
OJhe witness goes on to testify that he had two letters from Mr. Marx before he shipped any scrap and he of.lied upon -them personally; he never agreed to ship them s.ny stuff, had inquiries from several dealers in this materiel end their prices were in line with all the others on this miscellaneous sorap. On the advice of his oo-liquide.tor, Mr. Smith, he went over end hid e talk with 2ir. iferx speaking to him about this miscellaneous scrap snd asked again for a price, and referring.to his files, Hr. Marx made him the same price that he had made in his letter. He then ssked Mr.
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Dlnkelspiel; J.
This suit brought by plaintiff, averring that defendants bought oertain lot of mixed scrap at various times at an ■agreed prioe of $17.50 per ton, the oopper sorap at sixteen bents per pound and the brass sorap at thirteen oents per pound; there were shipped to defendants three oars of mixed sorap and four barrels of mixed brass and oopper sorap. The allegations of the petition go on ta assert that defendants paid for two of the oars of mixed sorap but never paid for the balanoe, hence they prayed for Judgment in the full sum of $444.76.
The- answer and-'reoonventional demand of the defendants admit that they bought a oertain lot of mixed sorap from plaintiff, but deny that the amdunt in question olaimed by plaintiff was owing by them, but assert the faot to be that on or before February 18th, 1920, they purchased from plaintiff a oertain lot of mixed sorap material whioh was looated at Eunloe, Louisiana, for the prioe and sum of $17.50 per ton¡ that under said oontraot plaintiff shipped them some of the sorap material, for whioh they paid, and alleging further that plaintiff contrary to their obligations under the said oontraot and in violation of its duty thereunder, separated from the said lot of sorap material, the sorap oast, whioh was the most valuable part of the lot, and sold same for $33.00 per ton, refusing to mete any further shipments from the said lot to them. That defendants were entitled to an accounting showing the proceeds of sale of the sorap oast made by plaintiff, and all othl er material comprised in the said lot of mixed sorap or otherwise disposed of by plaintiff in violation and breach of their oontraot with defendant, and therefore defendant is entitled to recover from plaintiff the difference between the proceeds of such sales and the oonvraot prioe of #17.50 per ton. Finally they pray that plaintiffs suit be dismissed at their costs and that plaintiff be ordered to account herein to defendants for [674]*674the proceeds of the afile of seid scrap cast end all other materiel amas? comprised in the seid lot of mixed scrap wrongfully converted end sold or otherwise disposed of by plaintiff, and defendants deducting the amount alleged to ha due plaintiff, whioh they state to be §343.79, in reconvention pray for a judgment for b*lance due them by plaintiff of §943.31.
An examination of this record gees to show th'-'t in the esrly part of February, 1930, the plant of the Eunice Ice and Power Company burned and thair aff-iirs wer^ taken ov--r by three liquid--tors, who are the plaintiff? and appellee:? herein. The-fire evidently destroyed the property end it became neces- ? ry to dispose of ¡test of it as scrap, and in this oenn- onion letter.- p'. sed betw-'-.n pi-inciffs and defenis-nt, vhioh .substantially l?-n tc this controversy; ana after several *.rep: rt-tory letters betw-en plaintiff? liquid: tors end defend-r.te, finally termin--te i in letter addressed to pli intiff -.is ted February 18th, 193U, wherein the defend-nt wrote:
"ilixed scrap sxaxtiKixx excluding galvanized iron,butted sheet iron pipe or boilers would be worth §17.50 per ton delivered here. Ship heavy scrap copper sixteen oentB per pound, mixed brass thirteen cents per pound." Going on in this letter they add; "Now relative to the machinery we of oourse cannot take your price on this, nor would we oare to oomeout and look at it unless we had inventory from you astiis stating exactly what you had to offer, its condition and very lowest price you will take for seme. If you will furnish this information promptly we will get one of cur men to come cut on S-turfy night to go over this property on Sunday, if you h:.ve no objection, and try to make a trade with you."
It appears th't subs- .¿uently .,1; intiff shipped bar-ril? of scrap in oars to defendant and the belenes olaimed by pi tin tiff liras the sum now sued for.
The testimony of J£r. L. B. Showers, on9 of ths liquidators, is positive th; t plaintiff and defend nt had no contract [675]*675an reference. to thee* .treneaotione," ,Hr. Showers testifies that he mot I and told the defendant- that the oompany he represented had a lot, of miscellaneous sorap for sale, asked for k price; that the prioe was given him and thst he agreed to ship at the price named.
Witness was asked this question:
(J. In the answer of the defendant It is set forth that you separated from the sorap that you had contracted to sell to them, certain oast sorap and sold it to someone else. Did you contract to sell to Marx the sorap oast to whioh they refer?
A. I did'nt separate any oast or any other material from the sorap tbet X sold them.
Q. What kind of sorap did you contrsot to sell to Marx?
A. Just e lot of miscellaneous sorap, mostly pipe and a little oast.
Q. What other material did you have after the sale to Marx?
A. Nothing hut a lot of maohinery that X had not then deoided to scrap,
Q. Did you agree to sell this maohinery to Marx?
A. I asked them for an offer on it.
Q. Did they make you any offer?
A, They told me they were not interested in it.
Q. Did you have anything available for sale besides the scrap which you aotually delivered, end the machinery they told you they were not interested in?
A. No sir. Wa had some boilers and things like that we offered to sell to them s,nd they told me they were not interested in them.
Q. I mean sorap iron oast?
A. We hs.d some brass and copper pipe whioh I sold to them and shipped out to them.
Q. Was that pert of the material sold as scrap or was that separate?
A. Well, it was all scrap.
Q, Was that paid for?
A. Not ell of it, No sir.
[676]*676Q. Does the sorap brass and. copper represent pert of this olaimt
A. Wall, they paid according to my recolleotion'up to a oertain day end at that time they 3ent their check they had net checked in the rest of the stuff and they were delaying the settlement •for thst.
OJhe witness goes on to testify that he had two letters from Mr. Marx before he shipped any scrap and he of.lied upon -them personally; he never agreed to ship them s.ny stuff, had inquiries from several dealers in this materiel end their prices were in line with all the others on this miscellaneous sorap. On the advice of his oo-liquide.tor, Mr. Smith, he went over end hid e talk with 2ir. iferx speaking to him about this miscellaneous scrap snd asked again for a price, and referring.to his files, Hr. Marx made him the same price that he had made in his letter. He then ssked Mr. íferá about the machinery, if he was interested in it and he said no; on account of the machinery having been through a fire he was not interested in it .without first having seen it, and asked if I would make a price on o piece of machinery separately he would go and look at it end ifxhxxx after he examined it would let me know whether he was interested in itor not; he also asked me whether I would be interested in some ice .machinery that he was interested in, and I answered him no, all that we wanted was to get rid of' what we had and I told him 1 would ship a bt-r or two of miscellaneous sorap which-I had, and would sse further about the heavy maohinery, which X oould not be positive I ooüld sorap; I vfented to sell it as heavy mechineryif X could, he never did make a prioe of any kind on the heavy stuffjat the time of that meeting he asked me particularly whether there was jsny good pipe in this lot of miscellaneous sorap and after I hs-d told him that the best of it would be pipes I told him I did npt think there would be much good pipe, that it was mostly burned, warped end bent from the fire, and he ••remarked that that did not make any difference as long as it would stay in the oar, and they would out it up, ,as long as there was no sheet iron or galvanized material or badly rusted light iron in it it was all right. Xhats about all [677]*677there was to the conversa-tüon and I told him I would ship what there w=s and also the oopper end brass, which was done. He testifies further that the price of the oopper was sixteen cents a pound and thirteen cents for the brass, and that the bulk of the shipment me.de Wes oopper and brass.
Q. How. how were you to knew what was due for those vslves?
A. They were examined, weighed snd remitted for accordingly, I billed , and/titoKibsbSi at/the blanket prioe, fifteen cents, simpiy to weight of the goods ^-meke a record of thVgcoodexaoat'giM; and the shipment,
q. The Harx end Son were to demand wh?t was due on thos vflvss?
A. They were nxighstt simply to weigh the oopper and brass separately and pay for it, sixteen oents for the oopper, thirteen cents for the brass, I had no soales to weigh eaoh separately.
Q. What e-re rne items that you are charging defendants with not paying for?
A. As -far as l sm concerned there is a ba-lanoe due on account, it is the amount in the rough, I don't Know because they would never furnish me with the exaot weight of the bra-ss and oopper separately, snd ihere was sn item of two of weight whioh they never furnished me with.
Q. You stated there wss some six carloads of material that you deoided to ship. Wnen did you decide to scrap this material?
A. I tried at various times to get a better figure by selling it es useful machinery, but when X oould not do nhat, as I only had the offer from John M. -iurphy Company of thirty dollars a ton, X ascided to sell it to them end sk did sors.p end ship it to them. Hobody else mxdKot made me an offer on it.
0. In exactly what condition was this metersal before it was scrapped?
A. With s. very few exceptions it w»s very good machinery.
And he goes on to testify the t he oould not get any better offer as it stood snd they only way that he oould sell it w*s to scrap it, and he hs.d offered it tc the defendant ber by fore it was sorepped but/correspondente :-nd verbally they re[678]*678fused to buy it.
The Court then asked the “fitness the folio >ing questions:
Q. Did those six ovrs of osst oome from th: t scrz-pped n-chinery exclusively?.
A. Yes. The machinery \ys really not scrapped ~-a lo-'d?:1. up, but i-s it w°s it w-s sold on the basis of thirty doll* i"> ? ton. I keep referring to it ss scrip although the nr-chinery '-to nor broken up.
Q. As soon ss you determined to sell it by xxjc weight it become for tne purpose of commerce, scrapvr.nd sold by weight?
A. Yes.
Q. Is Shut the ¡.¡-chinerv tt- t is referred to in on? of the let tero shewn to veu and th.t you »eked $450.00 for?
A. Yes.
CJ. The machinery 3 in that bunch?
A. Yes.
Witness further testifies that the first c-r went to John H. Murphy ft Company and was shipped il-rch 23nd "nd the firsc oar shieped to Uerx its a Siaroh 37th.
H. 5. Smith »lso one of the liquidators of ohe plaintiff company testinee ?3 fo?lov/s:
Q. Did you have nything to do with the making of the contract .stxXtaitxxJfaxxx between Msrx ®nd the Eunice Ice end Power Company?
A. There v/f.s no oontrect m?de th; t I knew of.
Q. Did you send to Marx end Sons all of the meteriiil which you ht-d determined w.s scrap on the day the contract with H-rx w»s mude?
A. We had; in fact we sent him more than v/3 hod intended he was to get.
Q.. Hev/ long after closing the dv 1 with Msrx was is th*t y;u closed the de.r-1 v/ith Murphy?
A. Y;s h.d the i?“-l v/ith Mur'hy before we had she d->l with [679]*679Marx. Murphy offered thirty dollars a ton for any machinery we had in ease we decided to abandon the plant, decided not to use it again, end we could not find any other better offer.
q. What did he designate in his offer of thirty dollars a ton?
A. Any asst me chi neryi
Q. His offer was then, thirty dollars a ton for oasting3, he did not want anything but oasti-ngs?
A. Tes.
q. At the time you received the letter from Marx and Sons dated February 14th did you have Murphy's offer of thirty dollars a ton for the oast under consideration?
A. We did.
f}, And you dosed with Murphy Bfter you dosed with Marx?
A. We.shipped to Murphy before we shipped to Marx.
The testimony of Isaac Msxkx Marx, after stating that he was a member of the defendant firm, had been engaged in business for twenty years, and giving his definition of mixed scrap as a general mixture of scrap out of the destroyed plant, wes «shed:
Q. In quoting $17.50 s ton F. 0. Sr. Hew Orleans for mixed scrap upon what did you base your offer?
A, When 7/e quote on mixed scrap coming from any sort of a- plant, scrap from the debris, we know from our experience that we are supposed to get a certain amount of different grades of scrap, end the amount of cast usua-lly figures S3 l/3 per cent end we could not ps.y $17.50 a ton delivered in Hev/ Orleans for e lot of skin stuff suoh as that shipped, tv/isted pipe, etc., because we have to recondition thst scrap here and reship it to some other dealer and the freight rates -.re five or six dollars a tpn, at that the scrap pipe itself was quoted twenty one dollars or twenty two dollars s ton delivered in the oonsuming market so that on the face .of it, it showed that we exx^ected to get a better grade of scrap then just pipe.
4. Whs.t you might have expected to get would have no bearing [680]*680on the oontraot between you. TOie.t I vent to knoYi is sinrply on whet did you bees your figure of $17.50 a ton?
A. On past experience.
Referring to the st- tórnente annexed to the defendants answer he seys they were all correct: and pertlcuirrly referring to the de .'end-nt1 e statement marked D 7 which ie an itemized account between plaintiff and defendant showing that balE-nce due plaintiff after deducting ohsrges, to be $343.70.
In testifying to the convers-tion had with one of the liquidators, Mr. Smith, witness stated; "I asked what became of the east iron >"nd he says: "Why ycu did not expect to get cast iron for $17.50, we sold it for $33.00 r. ton? either that or thirty dpw--gTT-Hrl»Trir*y-->rirVtrT«- dollars, witness did not remember; end in his testimony ne further 3eye in the ea.me connection: "the oast iron which they had gotten out of the aeons should have come to ua for $17.50, because we could not pay that price for goods or .stuff they shipped to us.
On cross e i'iminstion:
Q. You mode the statement that your experience tells you th*-t when you buy scra-p from a burned plsnt, you e-cpect to get thirty three and one-third per cent o^’st scrap?
A. Yes.
,if Q. You h!i.V” he-^.rd the testimony --.nd don't you know th-.t-'you had received the t.vo o;rs th’ t ycu cl: imed to h- vo, yea would h. ve gotten eighty p*r oentl
A. Ho, the testimony here ie th- t they ship, id the O'-ct to Murphy U-roh 37th end 31st, end. Apri... ,3£nd, they shipped us the lost p<--rt, th-t only -,-.1-ghed thirty thcusrnd pounue which is v¡>xy evident th»t they mu3t hrve taken 30ms of our oast iron to fill out the o:r for Murphy.
Q. When you ’purchased * lot or two of mixed scrip from the Eunice loe & Power Company, ycu in n»li.ty purchased with the full knowledge that you were puroheiing exclusively of the mvofcinery, is not that true?
[681]*681A. Exclusive of the maohinerj that is maohinery not good to us, as'I tell you our experience teaohes us that when we buy mixed sorap in any oharaoter of plant suoh as this, a power or light plant, there is bound to be a lot of maohinery that is broken in the fire that is oast sorap, past experience shows us that it will go 33 l/3 per cent oast sorap with mixed sorap.'
Q, Bi4 She Marx & Sons settled for the two oars shipped did they not?
A. Yes.
Q. Did you question the quality of the material shipped then?
A. X have a reoollecticn we did, that we had th»t up verbally with Mr. Showers or with Mr. Smith, I don't remember oorreotly, we have a letter on file after we made the settlement, from wkioh it is evident we must heve questioned Mr. Showers.
some I}. Didn't Mr. Showers tell you that there was/sa*X usable maohinery in the sorap whioh they sold to you?
A. They told us that they were selling us with the usual amount of oast iron in the scrap,_ whether maohinery or otherwise.I din't oare, I was buying sorap, no maohinery,
Q. Did you take his word for that?
A. Yes, we didn't make an inspeotion of the plant.
On re-examination:
Q. Does the term mixed sorap include that pipe?
A. Yes.
Q. After you had agreed to buy mixed sorap from the Eunioe Xoe Company, did you make any offer on the pipe?
A. Yes, they offered to sell us s lot of salvaged pipe Whioh they evidently collected out cf the same debris.
Q. Whet did they ask for this pipe?
K. My reoolleotion is about fifty dollars a ton, and we were entitled to it at @17.50 a ton, it c&r.e in our original purchase.
The next witness is J. E. Wiegand, and he testifies that he is the superintendent of the yard for A. Marx and Sons, that he had a record of these oars. He goes on to describe them, [682]*682give íhe numbers of the oars, together with the pounds of matter received.
0. Was there any cast sorcp confined in either of those c re?
A. Very little, if any; that is why I notified the office of the condition of the scrap, because X was expected to get v/h-.-t we usually get in & mixed carload of scrap r-nd in the absence of thl6 mixture, I reshipped the entire contents of those c:.rs to --nether iron works in Indians,,. where X think the stuff wf-.s finally rejected
The other portion of testimony of this witness relates to the different cars reoeived by him for the defendants, their wieghts, and the charscter of goods as heretofore described by him.
It is evident to our minds that the defendants receiver from these liquidators, the oh-'-racter of goods ..urohesed by them, they refused to accept and would not purohtse the heavy m:chinery rtnd so that wvs sold to other parties for >■ much greater prioe beoe.use it had greater value. The entire record, taking it as s either or orally ■whole, convinces us that there was no oontraot^in -writing/and thet the several shipments prior to the lust one, handled by the defend-ancs, ware paid for .tk by them, and after the list shipment had been reoeived, they then apted that the shipments did not come up to their expectations, their testimony being based on past experiences; whilst on th« other h-nd the testimony of the liquid» tor-, in this o&se is hxjraná convincingly to the effect that the goods sent to defendants ware undeniably the same to vrhioh there were no objec-.i- ns by the defendant a-t th? time of the inspección, and.us seated heretofore until finel payment there '(■;-•£ no objection "t C11 m-de by defendants. However, defendants in our .opinion justly claim the difference as shown by their exhibit D 7 between the -.mount cl--imed by plaintiff tnd the amount .-ctuully due by defendants to pli-.xucj.ii, *nd from the facts' testified to and ths reoorci, -re •■■re convinced that defendvnts' statement of the - mount due is correct, or the sura of #343.79.
For the re-sons issignad, it is ordered, .-¿judgs-i end [683]*683decreed,' that the judgment ef the Court «.quo in unis onas, which V,-.-s for §444.76, he reduced to the sum of §542.79, i^nd for this latter amount, xxxix rl?intiffs, ths Eunice loe, & Power Company, in liquid'iicn, h vs judgment : gt Inst def-vnd-nt =, A. il. rx & Sons in with leg*l interest thereon from judicial her,¡and until paid,
. nd th.-t the rrooventionel dsm^nd of defendants, otherwise be dismissed, the oestr. of the ,v.pp--l to be paid by plaintiffs, the Eunice lea & Power Company in liquid-tion, ■ nd th- cost3 of the lower Court b-‘ psid by the definiente, A. M-rx S Sons, end 1 e ?m=nied, judgment be affirmed.
-Jui-rment amended -mi sffirmsd-