4 La. App. 618 | La. Ct. App. | 1926
J. B. Colt Company sold and delivered to W. A. Seal an acetylene gas light machine for the price and sum of $274.75. The purchasing order bears date August 21, 1920, and the machine was installed September 4, 1920, defendant giving his note for the purchase, price and paying in addition for the installation. On October 1, 1921, defendant wrote the plaintiff that he could not pay more than $100.00 on his note and requested that the balance be extended for another year. This must have been agreeable to the plaintiff, because the defendant, on November 1, 1921, sent his check to the plaintiff for $100.00 and a new note for $174.47. On November 1, 1923, defendant paid plaintiff’s collector $50.00 and executed another note for $148.47, which is the note on which the plaintiff has brought suit. The defendant enumerates a number of defenses and contends substantially and in effect in his answer that he bought the acetylene gas light machine under a guarantee that it would be in first-class condition and would give perfect satisfaction. That relying on these statements of plaintiff’s agent be paid $100.00 cash and gave his note for $174.75. That when he tried to use the plant he found it to be worthless for the purpose 'for which it had been sold him. That when in use it emitted an odor of such nature and character that it was unbearable and leaked gas .all through the
On the trial of the case the court asked the defendant, referring to the letters declared on in plaintiff’s petition and others annexed in the testimony of Albert Port-man, if these were the only letters he had written the plaintiff. The defendant, over plaintiff’s objections, answered that he had written at least a dozen other letters complaining that he had been unable to use the plant. The plaintiff complains of this and contends that the court, acting on defendant’s answer, had presumed that these other letters were in the hands of the plaintiff. The plaintiff declared on ■ two letters and refers to the renewal of notes on part of defendant as admitting his liability, etc. The plaintiff had also offered in evidence the testimony of witness Port-man, with some other letters attached to his depositions which had been written the plaintiff by defendant, in which defendant did not complain of the machine. It was all right for the trial court to ask the defendant if he had written other letters and to receive his reply that he had written at least a dozen and that these letters contained complaints that the machine could not be used.for the purpose for which it had been sold him. And these other letters were presumably in plaintiff’s possession and if plaintiff did not receive these other letters complaining that the machine could not be used, it should have, while adducing the letters which it offered in evidence, to show no complaints, also adduced testimony, if such was the fact, that plaintiff had not received any qther letters to the contrary.
The plaintiff also offered in evidence the testimony of Peter Mayer that he had packed and shipped the generator to defendant and that it was in good condition when shipped. It was therefore admissible for defendants to prove that it was not in good condition after installation, due to the unbearable odor from leaking gas, etc. The witness Portman, testifying for plaintiff, had state.d that plaintiff did not install the plant. It was proper for the defendant to show that although he had paid for the installation that the work was done by a party sent to do it from the. plaintiff, and the evidence supports defendant’s contention in that respect. The witness Portman testified that plaintiff sent a collector to collect from defendant and that his authority extended to making necessary adjustments of the machine needed at the time he called. This party called in 1923 and defendant testifies that the generator was out .of use because of the odor it emitted when in use. Therefore it needed whatever was necessary to remove the trouble and that this agent undertook to remedy the matter and pre
The prescription of one year pleaded by plaintiff under the law, C. C. Art. 2534, has no bearing to limit the action of a defendant acting in defense when- he is sued. 1 N. S. 468; Lastrapes vs. Rocquet, 23 La. Ann. 68, and Holcomb & Hoke Mfg. Co. vs. James Theodora, 1 La. App. 445. The judgment appealed from appears to us to do justice.
Judgment affirmed, plaintiff and appellant to pay the cost in both courts.