Ferguson v. Millaudon , 12 La. Ann. 348 ( 1857 )

Spokford, J.

The plaintiff sues for the price of four boilers manufactured by him for the front plantation of the defendant in the fall of 1854.

The answer is a demand in reconvention for a very large amount of damages alleged to have been sustained in the loss of a portion of a sugar crop that year, by reason of delay in the delivery of the boilers and their bad construction.

The value of the materials and workmanship (supposing the work to be good work) are established.

The only controversy springs out of the reconventional demand.

We do not find that the plaintiff is liable for damages in consequence of delay. No time was specified in the contract within which the boilers were to be completed. The defendant. alleges that the contract was made on the 13th August, a very late period. He took upon himself to deliver to the plaintiff some of the materials of his old boilers to be incorporated into the new ones. This was not done until the 21st of August. The plaintiff objected that it was late in the season to undertake such a job, but the defendant insisted on his doing so, and seems to have been cognizant of the impossibility of completing the work by the time he now contends it should have been done. And: we think the correspondence of Millaudon with the plaintiff shows that there was no violation of even an implied contract as to the time of finishing this job. His complaints at the time were confined to the quality of the work.

That was unquestionably defective. But as the boilers, though leaky, made steam enough to run the engines used by the defendant, we do not think that the loss of a portion of the crop was attributable to the defective work of the boilers. At any rate, no such precise data are given in evidence as would enable the court to say that any particular sum was lost to the defendant by reason of the bad workmanship of the boilers, save that which he spent for their repairs. It seems from the correspondence between the parties, that the plaintiff was to put them in good order if they did not work well during the first season, when they were obliged to be used. He failed to do so. The defendant employed a competent mechanic to do this work at the price of twelve hundred dollars. We see no reason why this sum should not be deducted from the plaintiff’s demand, instead of six hundred dollars which the District Judge allowed, because one or two of the witnesses thought the repairs might have been done for that sum.

It is, therefore, ordered that the judgment of the District Court be reversed; and it is now ordered, adjudged and decreed, that the plaintiff recover of the defendant the sum of two thousand and one dollars and fifty-six cents, with legal interest from the 26th December, 1854, until paid, that being the balance due the plaintiff, after deducting from his demand so much of the defendant’s claim in reconvention, as should have been allowed in the court below; it is further adjudged and decreed, that the defendant pay the costs incurred in the District Court, and the plaintiff those of this appeal.