Dupleix v. Gallien

This suit was brought in September, 1805, against the defendant on the following instrument:

“ Je susigné recomíais par ccs présentes vendre et m’engage h livrer a Mr. Louis Dupleix, qui l’accepte, cinq millo livres de coton (good middling), sous halles au prix de sept cents la livre. Le dit coton devra roster sous le moulin de Mr. Victor Radial ou toute autre per-sonnes, sujet a ses ordres sans autre dépensc a encourir de la part de Mr. L. Dupleix, j tisqu’ a 1’expedition.

sa

(Signé) “ MAECELLE M LAPLANTE,

marque.

“ LOUIS DUPLEIX.

“ Temoin : W. P. MOEEOW.

“ Natciiitoci-ies, Fevrier 11, 1862.”

Plaintiff demands the delivery, according to said contract, of Eve thousand pounds of ginned cotton, good middling, as Ms property, and in default thereof the sum of $2500 as its value.

The defendant pleads the general denial, admits the sale by her deceased husband, as represented in the instrument sued on, and alleges a full compliance on his part with all the obligations of his contract.

The District Judge held the defendant liable because the deceased vendor failed to notify plaintiff of the place selected for delivery, and she has appealed.

It is shown that soon after the date of the above contract, Laplante called on Victor Ilachal to gin, bale and store the cotton which he stated he had sold to plaintiff, and as the said Eaohal could not do it, Laplante called on Louis Casimere Baclial at Madam Palliére Eaehal’s plantation on the river about fifteen or twenty arpents below Victor’s, and had the cotton there ginned, haled, weighed, marked and stored, in March, 1862, as plaintiff’s, using Victor Eachal’s wagon in hauling the cotton from his own plantation opposite Victor’s, to that of Madam Pallicro’s, whore' it remained until - April or May, 1864, when it was burned by the Confederate and Federal armies.

Upon the hypothesis that it was incumbent on the seller to give ihe notice, as held by the judge, the circumstances raise a strong and weighty presumption that plaintiff was notified. His silence and inactivity for more than three years and a half leave hut little doubt as to his personal knowledge.

*535But be this as it may the peculiar phraseology of the written instrument and facts of the case warrant the construction, which relieves the seller from any such obligation. It is expressly stated therein that the buyer accepted delivery, and the seller was only required to deposit the cotton at the gin of Victor.Rachal or any other person, whore it was to remain subject to the order of the buyer, without further expense to him, until its shipment. From this it may reasonably be inferred that the buyer undertook to ascertain where the cotton would be deposited. The seller with remarkable promptness and fidelity, executed his part of the contract, and the cotton remained where delivered more than two years before its destruction, which must be held to be the loss of plaintiff. C. C. 2442. The case of Seris v. Bellocq, 17 A. 146, differs from this in the material facts. Equity is very decidedly with the defendant in this case.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, in the capacities in which she is sued, with costs in both courts.

Rehearing refused.