Gilmore & Maginnis v. Meeker

Citations

• 115 La. 850
• 40 So. 244
• 1905 La. LEXIS 747

Syllabus

<p>On Motion to Dismiss.</p> <p>1. Appeal — Dismissal.</p> <p>The order of appeal included the suspensive and devolutive. The bond for a devolutive appeal was fixed.</p> <p>Though not good for a suspensive, it is amply good for a devolutive appeal.</p> <p>The devolutive appeal is not dismissed.</p> <p>On the Merits.</p> <p>2. Sale — Breach oe Contract — Evidence.</p> <p>The charge of negligence brought by plaintiffs against defendant, in support of their claim for cane frozen, which plaintiffs lost in their field, is not sustained by the' testimony.</p> <p>Plaintiffs were not able, through scarcity of labor, to deliver until about the 1st of December the number of tons they had obliged themselves to deliver daily as per their contract.</p> <p>One hundred and ten tons was the number of tons the plaintiffs’ contract bound them to deliver.</p> <p>Until about the 1st of December the delivery averaged from 50 to 80 tons. In a grinding season, limited to about 70 days, it was of some importance to deliver the average number of tons weekly as stipulated in the contract.</p> <p>Other planters and farms sold cane to the defendant on similar conditions as the plaintiffs. They lost no cane. It was shown that defendant had issued instructions to his employés to let plaintiffs have some preference, and to, especially as to them, avoid delays.</p> <p>3.Same — Goods Lacking in Quality —Acceptance.</p> <p>With reference to the other claim for cane which should have tested 9 per cent., the cane was received by defendant and made into sugar, sold by him, and proceeds received.</p> <p>The test, which does not seem to have been entirely accurate, fell a fraction below the 9 per cent. A small part of the cane thus received was paid for, and as to the remainder no timely notice was given by defendant to plaintiffs of his rejection of this cane. The juice was converted into sugar. It had value. It is not shown to have affected the quality of other juice that tested over 9 per cent.</p> <p