D. Rau & Son v. Smith ( 1920 )

Plaintiffs institute this suit under a written Contract of Sale of furniture signed by both plaintiffs and defend ant. The amount in question is $455.00; |350.00. of whioh is for a bed room set; $300.00. for another set and $5.00. eaoh, for three kitohen tables.

Alleges further, that this furnture was pueohased by defendant from plaintiffs, and was(and is stored in their furniture establishment in the City of Hew Orleans, and on whioh furniture there were paid to plaintiffs by defendant the sum of $75.00. cash at the time of sals, and there were to hare been payments subsequently at different intervals of |45.00. until the entire amount of balance was paid.

That sinoe the payment of the $75.00. in question, made at the time of the purohase, there has been nothing p paid.; that the furniture in question is held by plaintiffs, at their store, on whfcoh they claim a.vendors lein and privelege together with Interest thereon for the several amounts past due.

Defendant, whilst admitting her signature to a oheok of $75.00. paid to plaintiffs, denies that she ever went into their store, but asserts that shs believed she was going into the establishment of Barnett whioh adjoins the one of plaintiffs.

Defendant, further more alleges, that she, under this belief, in payment of the $75.00., signed a oheok whioh at that time she did not know that the oheok was made payable to the order of plaintiffs; that she did sot see the oheok when she signed it, and would not have signed it had she had known that she was not dealing with the firm of Barnett.

The last and final oontention of defendant is, that on inspeotlon of the goods, the furniture in question, they wore not Ike same oharaoter of goods whioh she had -8-«greed to purchase; that they were all of an inferior qual -ity, not as represented , and she prayed for judgment for the return of the $75.00.. in reoonvention, and that plaintiffs suit lie dismissed at their costs.

A oareful examination of the testimony in this^case oonTinoes us, ¡ that 1¶- she did not know she^dfeallng with plaintiffs firm there were many evidence of that fact before her; large signs were in front of the place, giving the names and the business dealt; those signs being distributed also in large print on the various floors of the establishment; the oheok whioh she gave for the $75.00. and whioh she signed for that amount; the contract of sale which was signed by both plaintiffs and defendant all denote that if she did not know she ought to have known what she was doing and with whom she was dealing. As to the character of furniture which she purchased, the evidence satisfies us, that this furniture originally was in the lower part , on the second floor, of plaintiffs establishment, there exhibited to her. She had every means of recognition, and at hex request, stating that she wanted this furniture on the next day, after completing the transaction above referred to, plaintiffs with their men employees of the establishment removed the furniture from where she had seen it when she bought it, to the fifth floor whioh is used for packing purposes, in order to deliver it to defendant the next day at her residence which is described in the bill of sale.

Now, it is evidenwe to our minds, that her various attempts both in A in the Criminal Courts and in the First City Court, in a civil proceeding, and on appeal from the deoislon' of the latter Court to this Court, reversing the judgment of the Fieri City Court, detor-maining the issues tfae-iesuaa there involved which was a question of the return to her of the $75.00. whioh had been paid on aocount, and whioh was deoiled by Ble Honor Judge St. Paul, presiding Judge of this Court, against her contention and whioh judgment became final, and .finally this suit whioh now involves both a dismissal of plaintiffs aotion together with the return of the #75.00. as ordered by His Honor, the Judge of the District Court.

We are satisfied without quoting, which is entirely unnecessary and would serve no usefull purpose, all the testimony in this suit; that no unfair advantage was taken of the defendant by these plaintiffs; she was treated as all other customers doubtless are; she bought and they were ready to deliver at anytime the goods whioh she had bought; her entire efforts were directed to the return of the $75.00. whioh she had paid to plaintiffs on this very transaction, and her evidence that she was not tendered the exact furniture that she bought does not meet the requirements of the law in that she had to make that part of her claim oertain, and she has failed utterly to do so.

The only law applicable to a case of this kind is found in Civil Code under Articles 3456- 3467- 3468- 3469- and finally Article 3487, and all of these artloles combined are to the effeot, that the seller is not bound to make a delivery of the thing, if the buyer does not pay the price and the seller has not granted him any term for the payment.

The vendors privelege for the balance due being the sum of $380.00. has not been paid, and they have kept this furniture in tact ready for delivery from the time of the purchase until the present time and they are entitl-led to the relief prayed for.

judg^ní'o^lIe^Sfs^gíál^úrt"e^elsVSga6" the plaintiffs have judgment for the full amount claimed, the sum of $380.00, together with legal Interest froa 10th. December, 1919, until paid and with recognition of vendors lein and privelege on the property sold and that the reconventional demand be rejeoted. Defendant to pay oosts of both Courts.

{ Judgment Reveredd and Rendered. )

July 16th, 1920.