Dubourg v. Anderson
5 Mart. 268
La.
1819
Check Treatment
Derbigny, J.

delivered the opinion of the court. The defendant having sold to the plain* tiffs a quantity of molasses, represented,to be no| *272less than forty barrels. They gave him in payment their negociable note of hand for toe sum of S50 dollars. But having foujud, when they went to receive the molasses, that it fell short of the quantity represented, they refused to take it, and brought the present suit against him to obtain restitution of their note. They further ask for such other relief as equity and justice may demand It is'in proof; that instead df fori ty barrels, the quantity of the molases was noi more than fifty or sixty gallons ; so that there was evidently error or fraud in this transaction. But the appellant relies-on other grounds of de-fence. In the first place, he complains that one of his answers to the interrogations propounded to him was not admitted to its full extent, and that a part of it was improperly struck oil asir* relevant. But we are of opinion, that had thifj answer been received unconditional ¡y, it coin-tains nothing that could avail him. We therftr fore think it useless to examine whether the part struck off was or was not pertinent ; because, should we find that it was, wé would not send the case back to be tried anew, with the addition of evidence which we deem insignificant.

The appellant further contends that the judgment of thé district court is wrong and ought to he reversed, beeause it awards to the appellees *273that which they did $⅛⅜ ask for; the petition • . „ , ■, , , praying for the restitution of the note, and the, judgment decreeing payment of a sum of money, We think with the appellant that the judgment ought to have been for the thing prayed for; but in awarding the restitution of a note of hand, which the plaintiffs are liable to payydf nc>4 returned, the court had a right further to provide that, in defect of such restitution, the amount of the note should be paid. At'any rato, the prayer for general relief surely embraced that additional remedy. v..„

Gvymes and Canonge for the plaintiffs^ JAvermure and Eustis for the defendant.

It is, therefore, ordered, adjudged and de-A-' creed that the judgment of the district court bo annulled, avoided and reversed; arid this court, proceeding to render such judgment as they think ought to Have been given below, do order, adjudge and decree that the appellant shall pay to the appellees the sum of three hundred and fifty dollars, which payment maybe satisfied by the surrender of the note sued for; it is further ordered that the defendant pay costs. '