9 La. 434 | La. | 1836
delivered the opinion of the court.
The plaintiffs sue to recover the price of various articles, as detailed in their account, which they allege were sold and delivered to the defendant, the principal articles consisting of marble mantle pieces and hearths.
The answer contains a general denial, and the defendant further avers, that he made a contract with the plaintiffs, for the building and putting up of certain marble mantle and chimney pieces, the plaintiffs obligating themselves to furnish the materials and the work and labor; that before any of the mantle pieces had been put up, the house was destroyed by fire, and that if any of the materials were in the house at the time, they were at the risk of the plaintiffs.
The delivery of most of the articles charged, is proved; but there is no positive evidence of such a contract as is set up by the defendant. He seeks to bring the case under article 2729 of the Civil Code, which provides that “ when the undertaker furnishes the materials for the work, if the work be destroyed, in whatever manner it may happen, previous to its being delivered to the owner, the loss shall be sustained by the undertaker, unless the proprietor be in default for not receiving it, though duly notified to do so.” It appears to us from the evidence, that the principal contract
But there is no proof of the delivery of those articles charged previously to the 25th of July, and in this respect the judgment must be reformed.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed and annulled, and proceeding to render such judgment as in our opinion ought to have been given below, it is further considered, that the plaintiffs recover of the defendant the sum of five hundred and one dollars and seventy-five cents, with costs of the District Court; those of the appeal to be borne by the plaintiffs and appellees.