
    No. 7639.
    Poitevent & Favre Lumber Company. -vs-W. H. Ward, doing business as the Algiers Saw & Plaining Mill.
    By Dlnkelpífcl. J.
   This oontrovery arise substantially out of the following faotsj

Plaintiff, a corporation doing business and dom--ioiled in Mandeville, in this State, represents, that defendant, doing business in the name of the Algiers Saw and Plaining Mill, in this City, is justly and truly indebted to plaintiff in the full sum of $038.31., representing the value of a oar load of “heart face lumber", amounting approximately to 16.157 ft. of irctj l.¿ X 6". This lumber was shipped on or about October, 37th. 1015, being in fulfillment of an order which plaintiff received throught one R. H. Hackney, a representative saleman of the Pointevent & Favre Lumber Company, but without authority to accept contracts of this character which would be binding upon plaintiff ’«itnout first submit-ting same to them for ftsx ratification or rejec-tion.

When the order in question was sent to plaintiff for ratification, the sale called for "all heart lumber", but was Interpreted by plaintiif to mean "heart faoe lumber", which quantity of lumber was forthwith shipped to defendant and was invoiced under that description; but defen-dant appears to have paid no attention to the invoice, unloaded the oar and stored the lumber in their yard without making any oomplaint, at the time, that the lumber ,as not satisfactory or that it was not up to specification.

Defendant ansviered, teat tne order given by them to Hackney was in writ ng and addressed to the Pointevent & Favre Lumber Company and that same called for one oar, 15.000 ft. x 6"", all heart long leaf yellow pine, 80 $ mK knots, @ $33. per M. ft.' f. o-, b. oars N. one oar, 5.000. ft. 1 x 13", prime long leaf yellow pine @ $36. per M. ft. f. o. 5. oars N.O. one oar, 16.000. ft. 1 x 4 & 1 x 6, cypress x strips, to average not less than 14 ft. each length, free of knots, splits and waine, prioe $13. per M. ft. f. o. b., oars N. 0.; that this order was accepted by said R. H. Haokney for the Pointevent & Favre Lumber Company, as their agent, but only one oar of lumber containing 16.157 ft. a of pine of which approximately 40$ was up to grade in aooordanoe with the contract and the balanoe was below grade ordered, Bame being (¡heart face" and being 1 Coni grade lumber, was received by them..

Defendant reconvened and claimed damages in reconvention in the sum of $ 643.00.- $ 500.00. in globo for damages for loss of business add $143.00. for difference in the prioe of lumber shipped.

It is uterly impossible to reconsile the testimony in this case. Hackney, in our estimation of the evidence, had no authority without oonsent of his principal to do anything but solicit orders, .forward same to them for confirmation or rejection, while in this particular case the mill accepted the order of the one car which they shipped; they notified defendant throught. Hackney , both by oor--repondence and phone, of their inability to accept the orders for the other two cars.

The evidence further convinces us, that when defendants notified plaintiffs that the lumber shipped was unsatisfactory to them, plaintiffs were prepared to take same baolc and reimburse defendant for the freight which amounted to $ 43.40., whioh had been paid out on this oas by the defendant, and according to two letters, dated November, 36th. 1915, one of whioh contained Instructions to Haolcney as to what was to bs done with the oar of lumber after same had been turned over to hirak by defendant. The other addressed to the Algiers Saw and Plaining Kill, authoris--ing them to turn over said oar to Haolcney. Dsf--endat had every opertunity to r'eturn the oar and escape liability therefor. Defendant, however, stating setting up the fact thatetheir order as given to Hackney , had not been completed, freight paid by them had not been adjusted, refused to give up the lumber, all of whioh was then and is still in their possession and on account of whioh nothing haa ever been paid, henoe this suit.

He donot believe the defendant had a valid contract for the lumber which is olaimed by them in their reconventional demand. There in the record on the part of defendant whioh sus-tained their allegation that Haoknay was authorized to enter into a contract of sals of this oharaoter, had the right to make suoh a contraot with them in this case same never having been oonfirmed by plaintiff.

On the other hand, Haokney swears positively that he never made suoh a oontract; he never had the authority to do eo¿ his authority being solely limited to sollolting orders for plaintiff and thereafter transmitting them either for aooept-anoe or rejection, and plaintiffs having deolined to aooept the orders for the two oars, and only one shipped by them, having notified that faot to defendant, as herein above stated, their re-oonventional demand must fail, even had same been set Slut with that detail and certainty which under the ruling of our Supreme Court in the case of Townsend -v- Fontenot, Sheriff, et. al, 47 Ann. 890 - 894, it should have done. Nor,do we think that plaintiff would have been bound to have submlt--ted the question in dispute to arbitration, even though it had been proven on the trial of this oase that suoh was the oustom in the lumber business.

This question was deoided in the oase of Saint -v- Martell, 137 La. p. 74, the Syllabus reading; " An agreement to refer, for final determination-, differences to arise in the future to arbitrators or amicable compounders, is not susoeptable to specific enforcement, but is dependant for its execution on the will of the parties; since the Court will not, in suoh case, oompel the persons to appoint arbitrators or amicable compounderg, or fcíhérwise enforq* agreements whereby persons undertake,^to the doors of the Courts upon themselves."

written The District Judge, in his/reasonsyfor judgment says; " The defendant having received the shipment and having retained same is liable for the value thereof, 40 $ thereof or 6463 feet, ( all heart) and worth $ 148.63, allowing the prloe as set down in the order. The balance accord ing to the testimony ui of defendants was worth #5.00. less or #18.00, per thousand or # 174.51, making the total value of the oar of lumber $ 333.13 deduoting from this freight charges paid by defendants amounting to #43.40, making the value of the oar of lumber # 376.13.

The authorities quoted by defendant and recon-venor are not applicable in this case, because having decided that Hackney was not the authorized agent to sell, same in oul"opinion do not apply in this oase. But in the calculation of the Distriot Judge he has made a slight error as will be shown by deducting #43.40. whioh was freight paid, from the amount of the lnvoioes found to be due, #333.13, iguuubclaxfeaxlus total value of the car of lumber; leaves a balance of # 379.73 for whioh the defendants herein are liable.

For the reasons herein assigned, it is ordered, adjudged and decreed, that the judgment of the lower Court be amended so as to allow plaintiff # 379.73, with legal interest from judicial deacraj^ until paid; that same in all other respects be affirmed with costs to be paid by defendant in both Courts.

-Judgment amended and Affirmed-  