The opinion
ON THE MERITS.
Issues of fact only are involved herein.
Appeal from Civil District Court, Division “C.”
Geo. Montgomery, for Plaintiff and Appellee.
H. A. Moise, for Defendant and Appellant.
ESTOPINAL, J.
Plaintiff alleges that in the month of June, 1905, he sold and delivered to the defendant, forty thous- and feet of gum lumber at the agreed price of eleven dollars per thousand feet, making the aggregate sum of four hundred and forty ($440.00) dollars, said sum to be paid by the defendant four (4) months - after the date of the agreement of sale.
The defendant in his answer admits a verbal contract with plaintiff to purchase forty thousand (40000) feet of lumber at the price of eleven ($11.00) per thousand and that the price was to be paid four months after date, and defendant adds, “to be reckoned from the complete delivery and acceptance of said lumber.”
Then follow some averments in their answer in reference to the quality of the lumber bargained for, defendant claiming “that said lumber was to be known as good white gum lumber free from all mill culls,” and not “gum lumber,” as alleged by plaintiff. The further averment is then made by defendant that a certain pile of lumber was designated by plaintiff as the lumber sold him (defendant) but that when he (defendant) sent his wagon to get a load of said lumber he was prevented from taking it, the same not being plaintiff’s property; that he (defendant) was directed to another- lot of lumber which was plaintiff’s, but this he refused to take, in whole or in part,, said lumber being filled with mill culls, and was red gum and not white gum free from mill culls as per agreement with plaintiff. Defendant then avers that he is owner of a box factory and *318 that plaintiff’s failure to deliver the lumber has caused him a loss which he fixes at three hundred ($300.00) dollars, and for which he reconvenes herein.
The evidence shows that defendant accepted schooner tally and without delay began to haul the lumber away. Before hauling away any of the lumber, however, King,-defendant, was required to secure an order from Minot. This order was secured and delivery thereby perfected. It is in evidence that defendant hauled away several thousand feet of lumber, and though he may have complained to others about the inferior quality of the lumber or of Minot's failure to carry out his contract, it is quite evident that the learned judge of the District Court did not believe that the defendant had at any time notified the plaintiff, though the former states that he' did. We have examined carefully this part of the testimony. The defendant when asked whether he would accept the tally of any one not employed by him replied that he always employed his own man and had every foot of lumber tallied, and that right after he bought this lumber from the plaintiff he sent, or had sent, an expert in the person of Mr. Oertling to inspect the lumber and that he (Oertling) refused to take it. On that point it is abundantly shown that defendant’s son, who was the manager of the box factory secured control of a pile or piles of lumber containing 39000 feet of lumber, and accepted thé schooner tally and immediately began to haul the lumber. Mr. Oertling was sent to inspect the lumber, but that uas long after delivery by Minot (plaintiff) and acceptance by defendant’s agent, Tom King, his son.
Defendant when interrogated on the 16th of October as a witness testified that he had never notiñed the plaintiff, or complained to him because he could neve'r see him. On the 22nd of the same month being recalled, the defendant was asked by his counsel:
Q. Mr. I don't believe the last time you ware on the stand, I asked you if you gave Mr. Minot notice?
A. No, sir; I didn’t; I went to see him.
Q. How many times did you call to see him.
A. I think three times on Burgundy Street.
Defendant claims to have had a conversation with Minot, who promised to make matters alright. Minot denies that *319 defendant ever called on him or that he was ever notified in any manner.
May 6th, 1907.
Rehearing refused May 20, 1907.
In view of the importance of this fact, and material as it is in determining this controversy it is more than passing strange that the defendant should have forgotten that he had held this important conversation with plaintiff. His statement that he did may be true but its force is destroyed by a former statement that he did not see plaintiff.
A contract in writing shown defendant by the plaintiff is not the contract in this case, but simply shows where the lumber is to come from and its character. It is a contract of the C. N. Maestri Co., of which Minot was manager with H. F. Lewis accepting and confirming his offer of 125,000 feet of Black Tupelo, Sweet Gum and Magnolia. It was from this lot of lumber that defendant was to get the 40,000 feet. It will be observed that there is no lumber designated as white gum in that contract, and Minot, the plaintiff, in his testimony says that there was no question of white gum when he closed with King, defendant.
The issues in this case were passed upon by the District judge, v, ho saw and heard the witnesses and unless his findings were manifestly erroneous we should hesitate to disturb it. Our examination of the record satisfiés us that the judgment appealed from is net error and it is affirmed.