The opinion
ELLIOTT, Judge
(dissenting).
I differ with the majority of the court as to the proper determination of this case. The plaintiff, a negro woman, bought from defendant furniture valued at $95, .payable on the installment plan. She paid on it until the balance due was $3.40.
Then not being able, or neglecting or failing for some time, to pay this small balance of $3.40, defendant’s collector went out with his wagon and helpers, and, in her absence,claiming that they had her consent by means of a message received from plaintiff, through her little daughter at the house, they loaded her furniture in the wagon and took it to-defendant’s warehouse, where it is held against her. Defendant now has the furniture and the $91.60 paid on it and judgment against plaintiff for the balance due, $3.40'.
Defendant supports its defense by the testimony of its agents and employees. After reading the testimony, I am unable to agree that the defense should prevail. I cannot believe that plaintiff freely consented within the meaning of the Civil Code, art. 1819, to what had been done.
I think the judgment appealed from should be reversed and judgment rendered in favor of the plaintiff for an amount proper to the loss sustained.