*83Hess Bros. vs Frank M.Callaghan.

No.8761

Plaintiff of How Torky ciadme of defendant $161*80 for toadla* sold and delivered.

Sha ordor «as giran by dafandaat to Jír Pinskl,the looal representative ot plaintiff In Haw Orleans,during the and of September or the beginning of Oetobar 1919. The oandles were d*Xirered only on January loto 1920 .Tha defense is that the candles reached the defendant*tooiate for uee,and in the meantime,}** to* obliged,In order to supply the demand,to purchase fro® local dealers at a price, whioh caused a loss;that some time after the hill of goods reached Algiers,plaintiff's representative called en hita,and defendant informed him that the candles were of no two to him and that he could not use them» that the representative than proposed that defendant use as much of them as It was possible for him to use in his trade,and that whatever he would use he would pay for; that he did uee part af the candle*,and in July 1820 he paid plaintiffs $100,which feprssantcd the full, value of the candies used by him,that the balance of the candies were unfit for uee and he could not sell then;hence he ewed plaintiff nothing.

There was judgment for plaintiffs and defendant has appealed,

the defendant has received the candies,has sold some of them.and has not returned .nor offered to return the balenee. H* cannot keep the candy and the price.lt would eeam a sound •oneiusion pt law that he must pay for lt^tmlese he can ehow tonta eltor reason for set doing eo.Ve do not think that he hae *84¡nada that proof.

There is no contention that at the time the order was given,in September or October,the candiea were to be delivered at any particular time.It is true that as a general rule,an order must be filled within a reasonable time and that 90 days was not such a time.But the plaintiff has testified,and it is not denied,that at the time the defendant gave his order he owed the plaintiff a bill for an anterior purchase and that it was r a rule,in plaintiff/Sbualness not to fill an order,unless all prior bllle had been paid,It does not appear either that defendant oomplaintd of the . delay either to the plaintiff or to his looal representative prior to the delivery of the candies.The evidence la that the qandles sold were not peculiar to the Christmas holidays,but were standard goods for sale at all seasons.

The plaintiff's looal agent denies all the allegations of defendant's answer.As the defendant is the only witness to support then by his testimony,It cannot overcome plaintiff's denial.

The'Judgment is therefore affirmed.

Judgment affirmed.

February 5th 1933.