Prejean v. Wogan Bros.

Citations

• 110 La. 362
• 34 So. 476
• 1903 La. LEXIS 637

Syllabus

<p>SALE BY SAMPLE-ACTION FOR PRICE — RIGHTS OF BUYER — DEFENSES.</p> <p>1. Plaintiff claims amount defendants bound themselves to pay for merchandise property, • bought by them of plaintiff, and which they decline to pay on the ground that it was not . equal in grade to sample furnished; and he 1 claims other amounts for items stated.</p> <p>2. A buyer of products sold to him by sample furnished by vendor to be delivered f. o. b. should sustain the averment that the receptacle in which they were received was not the cause of their deterioration.</p> <p>3. If, after a number of days following the date the products were placed in defendants’ receptacles, the buyer finds that the goods are not of the quality of the sample furnished, he should show with some certainty that his receptacles had been cleaned, and were in a fit condition to receive the goods bought; they (the goods) being subject to be tainted by mixture.</p> <p>4. Both parties to the suit, so far as the record to the suit discloses, are equally of good standing.</p> <p>5. Taking particularly other evidence than their own into consideration, the court holds that plaintiff is entitled to the price defendants had bound themselves to pay.</p> <p>6. The preponderance of the testimony shows that the samples furnished about the time the article was delivered were of the same quality as the product sold. The sample taken a few days after delivery shows an inferior quality.</p> <p>7. The theory that the mixture with the remnants of an inferior article left in the receptacle after previous use of the receptacle, and not taken out at the time of delivery of the product in the receptacle tanks, has more to sustain it than has the theory that plaintiff sought to take advantage of defendants by passing upon them product inferior in grade to the sample furnished.</p> <p>(Syllabus by the Court.)</p>