48 La. Ann. 682 | La. | 1896
The opinion of the court was delivered by
The plaintiffs sue for an amount claimed to be due under an agreement for the purchase and sale of grain, under which the plaintiffs were to buy, the defendants to take charge of the transportation and sale of the grain in Europe, and the profits on the sales to be divided. The suit for a specific sum was met by the exception that plaintiffs’ remedy was to sue for a settlement of the partnership. This resulted in an amended petition and a reference to accountants under defendants’ answer denying all liability and claiming a balance due by plaintiffs. From the judgment in the plaintiffs’ favor defendants appeal.
The course of business of these parties was for the plaintiffs to-
It is in proof that the transactions between these parties were in. progress from September, 1891, to March, 1892; that the confirmations were exchanged in respect to each transaction, and that plaintiffs rendered their accounts. In all this intercourse there was no objection to the account, save as to these terminal charges. By agreement of the parties the accounts were referred to their respective book-keepers; the book-keeper of the plaintiff reported the correctness of the accounts with the terminal charges in dispute, the book-keeper of defendant, his colleague testifies, agreed to the report, but after conferring, as. we infer from the record, with defendants, declined to sign it. We think the accounts carry the force-resulting from their rendition and the absence of any objection
The testimony for plaintiff is that these terminal charges were to be divided. That of defendants is to the contrary. It is not disputed plaintiffs were to buy; that defendants were to purchase, paying the selling price in Europe; that they were to furnish the ship contracts, i. e. the ships to carry the grain, the profits to be divided on the basis of the selling price in Europe, less ocean freights and insurance. The terminal charges were for storage, inspection fees, insurance and interest on the advances to buy the grain, all arising on this side and due entirely to delay in shipping the grain. All this was foreseen, is the testimony of defendants, and as these charges would arise from the ships not being on hand, and which it was defendants’ engagement to furnish, it is testified, it was agreed that along with the f. o. b. stipulation was the agreement to share the terminal charges. The payment of these charges by defendants, we conceive established. If the defendants’ contention succeeds, the whole of these terminal Changes will be thrown on plaintiffs. The profit to be divided is the .difference between the purchasing price of the grain and the selling price on the side, less freight and insurance paid by defendants charged under the agreement with the transportation. On defendants’ theory they are to be reimbursed all charges they paid, and with these deductions, get one-half of the selling price. Their construction excludes plaintiffs from any reimbursement of the ’’charges they paid for storage, inspection requisite before grain can be put in elevators, and insurance incurred on this side, because the ships to be furnished by defendants were not on hand. If the agreement proposed an equal division between those partners, the defendants’ construction is not in accord with that purpose.
In the conflict between the testimony of one of the plaintiffs and the member of defendants’ firm, testifying to the agreement, defendants largely rely on the f. o. b. stipulation. In the ordinary contract between purchaser and buyer that stipulation would undoubtedly bind the purchaser for the price only, when the commodity at the buyer’s expense is on board the ship. In this case the contract was
An account rendered and accepted exhibiting the amount due authorizes, we think, the charge of subsequent interest on that amount, although interest accrued is included in the account, and this, in our view, is an answer to the question raised by defendant as to interest charges.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.