Empire Rice Milling Co. v. Fabacher , 1916 La. App. LEXIS 135 ( 1916 )

His Honor,

EMILE GODCHA'UX,

rendered the opinion and decree of the Court, as follows:

Plaintiff, a rice miller, engaged defendant, a boss dray-man, to haul from the Iron Warehouse to his mill a lot of 290 bags of rice. Of this lot of 290 bags, 206 bags were duly hauled and delivered, but plaintiff claims that defendant has failed to deliver or account for the remaining 84 bags; and accordingly it has instituted the present suit for their value. There was judgment dismissing the demand, after trial upon the merits, and plaintiff appeals.

There is no contradiction of the fact that defendant secured from the Iron Warehouse and loaded on its six drays the full lot of 290 bags, nor of the further fact that on that same day, namely, July 11, 1912, defendant duly delivered and plaintiff duly received 206 bags of said lot, or four dray loads. The sole point at issue is as to what became of the remaining two loads or 84 bags, defendant on the one hand claiming that same was delivered to plaintiff on the morning of the following day, namely July 12, while plaintiff, on the other hand, insists that these 84 bags were not delivered or received on that day or any other day and have never been accounted for.

The contention of defendant that the two remaining loads were delivered at the mill on July 12 is supported by the positive and affirmative testimony of the two drivers who loaded these drays at the Iron Warehouse and who claim to have taken them to the mill; of the two other men who claim to have unloaded these drays at the mill, and of Ed. Fabacher who was present at the unloading of said drays and delivery of their contents at the mill. Cooper, whom these witnesses claim received these two loads at the mill on July 12 under orders from the manager of plaintiff’s mill, Mr. Gayle, denies that any delivery was made made on that day; but two letters to defendant from Mr. Gayle, who is not called as a witness, dated July 20 and July 29, respectively, are produced, wherein he complains of the shortage of 84 bags “in delivery of rice hauled from the Iron Warehouse to our mill on July 12.”

Opinion and decree, December 4th, 1916.

Upon this evidence, consisting of the testimony of five witnesses for defendant, corroborated by the letters of plaintiff’s manager, we find no difficulty in concluding, as. did the trial Court, that defendant has established with certainty a delivery of the additional two loads on July 12. Nor do we consider that this evidence is overcome by the statistics offered by plaintiff showing that the total mill production or yield evidenced a shortage of rough rice received, for it would not necessarily follow that this shortage is attributable to defendant with respect to the particular lot in controversy.

We find no error in the judgment and it is accordingly affirmed.

Affirmed.