Hays v. Smith Bros.

Rogers, J. Tbe defendants contracted with one B. E. Castendyk, who was the duly accredited agent of plaintiff, for two hundred whole casks of Seltzer water of one hundred jugs each, to be shipped direct from Rotterdam to New Orleans. The water was shipped on the vessel “Jos. Slater,” and reached this port early in May — about one month after the contract. The defendants received and hauled to their store ninety casks of the consignment, and refused to receive any more. After considerable correspondence between the parties, and some delay, the balance of the order, say 110 casks, on December 17th, were sold, and this suit is to recover from defendants the difference between the contract price and the sum realized by the sale, with certain expenses, such as storage and the like. Defendants answer that the two hundred casks were in unmerchantable condition; that inasmuch as plaintiff accepted payment for the ninety casks taken, he cannot claim more, and virtually discharged defendants from the contract; that plaintiff took charge of the remaining 110 casks, and held them until the season for the sale and use of the article had passed. Our learned brother, who seems to have given the case great consideration, did not think there was much merit in the [195] defense, in so far as the facts disclosed the unmerchantable character of the goods, or that because plaintiff accepted the payment for ninety casks actually delivered, declaring, when he so accepted, that he would hold defendants for the balance, he thereby discharged them from the contract. In these conclusions we agree with the District Judge. The Seltzer water is a staple article, shipped in a certain manner, viz: in jugs packed in casks. Nothing unusual or extraordinary is shown in the condition of this shipment, which should take it out of the general rule, that must inevitably apply to such cargoes. When defendants ordered them, they must be presumed to have known the manner of packing such articles. Plaintiff was justified in receiving payment for his property which defendants had received. It was due to him, and he did not necessarily abandon his right to recover the whole contract. We cannot presume a man intends to give away a right. In this case, however, on the acceptance of the money, plaintiff notified defendants he accepted the payment as made, on account of the whole order. But the judge a quo considered that the sale at public auction in December, and the failure to make a tender, and set apart the 110 casks after the refusal of defendants, should avail the defense. In this we do not agree. If defendants had so desired, they could • at any time have taken possession of the 110 casks before the sale, and the mere indulgence granted them, in attempts to obtain a settlement, ■cannot, and should not, be permitted to them as a means of avoiding liability. 10 Bos. (N. T.) 130. There was no necessity for a formal tender; the defendants had absolutely refused to receive the shipment; the law does not compel a person to do a vain thing. 3 La. 385; 14 La. An. 401. 1 McGloin, 151. When defendants refused to accept the goods, plaintiff had the right to sell the rejected goods to the best advantage. He was not bound to sell at auction. Defendants were notified that the 110 casks were stored at their risk, and when the sale was announced they were fully notified. The proceeding had in this case has evidently been confused [196] with the technical proceedings of a sale a, la folie enehére. There can be no such sale, unless preceded by a sale at auction. Under the provisions of our Code, the remedy must be strictly construed, the original vendee is absolutely bound by the price of the sale d la folie enehére, and cannot dispute it. lá La. 585. In the sale resulting as in the present, from a breach of contract, the difference of the price is a prima facieestimate of damage — it is not absolute. 3 La. 384; 4 La. An. 641. At the sale in December Schmidt & Zeigler purchased. It is contended they were plaintiff’s agents, and, purchasing as-they did, forfeits plaintiff’s right to recover. The testimony does not show that Schmidt & Zeigler were the agents of plaintiff. They were the consignees of the ship “Jos. Slater,” and beyond this, as to this cargo, bore no other relation. We think plaintiff should recover. The judgment is reversed, and it is now ordered, adjudged and decreed that plaintiff recover from the defendants, Charles Smith, Thomas Smith and J. B. Sinnott, and the firm whereof they are members, Smith Bros. & Co., in solido, the sum of $694 30, with legal interest from July 12, 1879, with costs of both courts.