46 La. Ann. 360 | La. | 1894
The plaintiffs, as assignees of John S. Moore and C. W. Knight, brought suit in the lower court to recover the balance claimed to be due by the defendant company on a contract of Moore & Knight to deliver and erect an ice manufacturing machine with all fittings and appurtenances. The defendant excepted that by the terms of the contract no suit could be brought until the manufacture of ice had commenced, and it was proven that the machine could manufacture ten tons of ice daily, the exception insisting the machine had never demonstrated this capacity. The defendant answered, denying that the assignors of plaintiffs had fulfilled their contract, averring that the machine furnished was defective^ not adapted to the purpose, nor according to the contract, that by reason of these defects defendants were entitled to four thousand seven hundred and ten dollars, for which defendants claimed judgment in reconvention against the assignors residents of New Orleans. The assignors pleaded their domicile to the reconventional demand against them in the 14th Judicial District Court of Ibervilie. The exception was sustained, and from that judgment there is no appeal. This eliminates the reconventional demand from consideration. The judgment of the lower court was in favor of plaintiffs and defendants appeal.
The defendants’ contention is well founded, that the plaintiffs, as assignees of Moore & Knight, are subject to all defences against the assignors. Nor are the defences of defendants precluded by the prescription pleaded by plaintiffs of one year applicable to the action quanti minores, for the purchaser sued for the price may always claim a reduction for defects in the thing sold. Civil Code, Arts. 2541, 2544; Thompson vs. Melbourne, 1 N. S. 468; Girod vs. Creditors, 2 An. 546.
The appeal submits the issue of fact: whether the ice machine was delivered and erected by Moore & Knight in accordance with their contract. The answer and the testimony of defendants undertakes to maintain that the ice machine in all its parts was defective and unfitted for the purpose of the contract. The boiler, it is contended, was not of the capacity — i. e., 50 horse-power stipulated, and it is charged that the generator, absorber, ammonia well, condenser, exchanger, valves and other appurtenances were each and all defective. The witnesses for the defence are the engineer of- the de
The rule so often applied in this class of cases, that acceptance of the work of the contractor binds the owner, or at least creates a presumption, in favor of the contractor, is reasonable. This machine was erected and put in operation early in April, 1891. On May 21, 1891, the company adopted the resolution to the effect that if certain enumerated articles were furnished by the contractors and the test made of the machine that the company would pay. This was certainly a qualified acceptance of the machine. The articles rhen required to supply alleged defects, it is proved, were of value little over |100. It is utterly impossible, in our opinion, to reconcile this qualified acceptance with the existence of the serious defects to which the defendants’ engineer and expert undertake, months after, to testify. If any such defects existed, as that testimony undertakes to support — i. e., a worthless boiler and appurtenances, grossly defective in workmanship and. material, the machine would, in our opinion, have been rejected and payments utterly refused. Instead payments on account were made, and the work accepted with the qualifications only specified in the resolutions of the company. The significance of this action against the company is made more impressive. The contractors sent up a portion of the articles specified in the resolution. These articles were, never removed from the warehouse, and the company avowed it would not have received the residue of the-ai’ticles called .for by their resolution... As to the.test proffered by the contractors, that was in effect refused. Weight is.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed at the costs of appellant.