Wilson Truckers Ass'n v. Bonura

7 Pelt. 443, 1923 La. App. LEXIS 137

• Court: Louisiana Court of Appeal
• Decided: March 19, 1923
• Docket: No.8990
• Status: Published

Opinion

Wilson Truckers Ass'n vs John Bonura and Co.Appellant.

No.8990

Charles F.Claiborne,Judge.

This is a suit for the recovery of $276.40 balance due on the price of potatoes sold and delivered.

Plaintiff's petition consists of two counts :

I The plaintiff avers that on May 1922 it sold,shipped, and delivered to defendant one oar load of potatoes,as follows;

173 bags No.l's at $2.50 $432.50

71 " " 2' s 2.50 177.50

38 " " 3's 1.00 38.00

12 Hampers Fancy = 6 bags 2.50 15.00

5.00

that it received on account 412.50

leaving a balance due of |250.50

II That on May 24th 1922 petitioner sold under and delivered to defendant another oar-load of potatoes for the price of #480.00 upon which defendant paid on account #454.10

( Price of potatoes $480.00 }

( Paid on account 454.10 )

leaving a balance due of 5.40 . 25.90^ making a total of

The defendant admitted having purchased from the plaintiff " one carload of choice red triumph potatoes " of the grades ana price mentioned in the first count of the petition; "that this car of potatoes was shipped by plaintiff for defendant's account to the Baldwin Pope Marketing Oo. in St.Louis to be sold for defendant's account;that upon the arrival of said oar in St.Louis,it was found that it contained no number One potatoes,a-large percentage of number Two potatoes,and some Number Three potatoes ; that owing to the low grade of said potatoes,said Baldwin Pope Marketing Co .were -unable to dispose of the potatoes to the trade," and declined to accept delivery of them; that defendant oaused them to be sold at a greatly-reduced price as "field run " potatoes ; that there was also a loss in said potatoes owing to their decayed and bad quality of 1879 pounds; that defendant paid b^aj; plaintiff $412.50 whioh was the full value of said potatoes.Defendants admitted owing $23.90 on the second oar.

®aay prayed " for judgment rejecting plaintiffs' demand except for $23.90 which it prays plaintiff be required to accept as the full sum due."

Defendants did not tender or deposit the $23,90 .

There was judgment for plaintiffs.for $274.40 and the defendant has appealed.

Upon the trial of the oase the plaintiff offered in evidence certain entries in a book concerning the shipment of these potatoes made by a clerk of the plaintiff whoso duty it was to make these entries under plaintiff's instructions.

The objection was overruled.The ruling was correct. Sec 22 C.J.P.862 S 1034 .P.863 notel" The authorities are numerous which hold that books containing entries made by those whose duty it was to make them in the usual course of business are competent evidence when other requisites are sufficiently established " 88 N.Y. 334-338-22 C.J. p 865 note. 151 Pac 657 C.J.p.868 No.16 p,885 .

The defendant offered to prove 1st.that the car I.C. 55,959 upon which the plaintiff had loaded the potatoes had been diverted by the defendants to St.Louis,and what became of the oar there; 2nd that the contents of this oar were examined by the consignees Baldwin-Oope Marketing Oo.ahd rejected on the ground that the shipment did not contain 173 saoks of No.One potatoes,and to establish the other defenses set up in the answer,and 3rd to establish how the defendants arrived at the conclusion that 5412.60 was tne only amount due to the plaintiff^that the defendants had a right to divert the- sninment.

The plaintiff objected to the introduction of this evidence.The objection was maintained.This ruling was error.

The seller warrants both the quality and condition of articles sold*by him,to be of the quality represented by him andb to be sound at the moment of delivery or within a reasonable time thereafter.Prom the time the potatoes were sold and delivered to the defendants,they became their property and they had a right to ship them to any plaoe in the world,and to sell them to any buyer they ehose.The vendor's warranty,as to quality,followed the potatoes for all time and in all places;The vendor's warranty was not bounded by longitude or latitude^’but as to soundness it lasted only for such length of time as potatoes keep sound under ordinary conditions.If.the vendors railed in that warranty the purchaser had a right to claim a reduction of the price.The vendor did not escape that warranty,nor did the purchaser forfeit that right,because of the fact that the purchaser shipped the potatoes, to an point different from the original destination. Whether the inferior grade,or unsoundness of the potatoes was discovered in Hew Orleans or in St,Louis,did not affect the warranty.Whon defendants resisted the payment of the price of the potatoes upon the ground that they were inferior in quality*or grade,or standard,from that purchased by them,or were unsound, at a time when they should have been sound,they certainly should have been permitted to establish that defense.

In all- sales there is an implied warranty against redhi-bitory wipes, or defects.C.C.247642461) isi La 76-41 A 1060 - 12 OtiApp 361- 0.0.2642 42620' )^Tho buyer may also content him-i self ■ with resorting to this aotion/reduotlon of the price)when the quality,which the thing sold has been deolarod to possess and which it', is ■ found to want’,is not of such importance as to induce him to demand a redhibition".

A purchaser of flour of a certain grade and kind is entitled to a returh of the price paid hy him if an inferior article is shipped to him 5 Ct.App.241 .

The case of Brown and al vs Duplantier 1 N.S.312 is a case similar in every respect to the case under consideration. In that case the plaintiffs purchased from the defendant a number of cotton bales and sold and shipped them to Liverpool' at that Jlace it was found that the cotton was of an inferior quality.The Court allowed the plaintiffs a reduction of the price. See also Shawcross vs Nivette Manning's U.C.118-5 R 217 - 3 A 455 3 A 442-7 A 613-8 A 136 .

The defendant sold to the plaintiff^s 150 barrels of potatoes in New'Orleans for $2.30 a barrel.He immediately shipped them to Shreveport^and sold them for $3.20 a barrel. On examination there,they were found unsound,and the purchaser refused to accept them.Held,the.plaintiffs were entitled to recover the reduction of the price -7 A 242 .

Inasmuch as the defendants admitted owing $23.90 but failed to tender or deposit the same according to law,but on the oontrary prayed that the plaintiffs be condemned to accept said amount in full payment f there must be judgment for plaintiff for $23.90 With costs. 23 A 183 -24 A 17 -108 La 125 -11 Ct.App 191- 4 R 146- C.P.415-416-156-549-52 A 864, .It is therefore ordered that the judgment herein in favor of the plaintiff be reduced from $274.40 to Twenty Three 90-100 dollars with costs in both Courts; that the rights of the plaintiff to reoover $250.50 balance claimed and itemized on the first count be reserved;and for that purpose this case is remanded for a further trial upon the evidence already on file and upon such further evidence as the parties may Introduce,and In accordance with the views hereinabove expressed;the plaintiff to pay the costs of appeal.

Judgment amended and case remanded for further trial.

March 1? th 1923