
    NO. 8286
    COURT OF APPEAL PARISH OF ORLEANS
    R. F. GRACE PRINTING & MANUFACTURING COMPANY VERSUS JACKSON BREWING COMPANY.
    
      
    
   Dinkelspiel; J.

Plaintiff institutes this suit sgsinst the defendant, alleging that on or about.the 1st day of January, 1920, it sold to the agent snd representative of defendant Company, 6132 triangular shape ten-ply card-board bottle holders, at s.n agreed price of $33.33 l/3 per thousand, total of sale amounting to $204.50, and. the goods sold were to be supplied snd furnished per sample furnished by plaintiff to the defendant company. That in due course of time the said order was filled snd the goods in number as bargained for were delivered to defendant oomp&ny by plaintiff and repeated demand having been made for payment, which was refused, hence this suit.

Defendant answering denies that the goods delivered was as per sample furnished them by plaintiff, and but on the contrary it avers that the goods delivered were of a lighter and inferior card-board than the sample and would not answer the purpose for whioh they were designed and intended.

The testimony in this os.se, of William D. Grace, who testified that he is in ths printing end box manufacturing business in this city, snd Secretary and Treasurer of the plaintiff oompeny; further that he gave €,.sample to Hr. Fe.be.oher with marks on it with .pen snd ink; ten ply board; received it snd delivered the geode.

Q. You supplied the goods to him?
A, Yes, sir; ten ply go&rd, same es ssmplo X g=vs him.

On cross examination he identified the board offered in evidence.

Q, Do you recognize this card marked defendant 1?
A. Yes, that is the board I gar' him; th't is the sample I gave him.
Q. Do you recognize this triangular board which I had you, marked defendant 3?
A. Yes sir, this is tee job that we completed for him.
Q, That Is one of the oards you furnished?
A. That is the semple and the oards furnished the ls-rge size.

The two oards in question 1 and 3 together with the .other six cards of similar oharaoter were offered in evidenoe in this case by the defendant.

The next witness for plaintiff was if. W. Graessle.

Q. What is your oooupation?
A. I am the manager of Diem & Wing Paper Company,
Q. You are not connected as a psrtner or owner with Mr. Grsoe'e establishment?
A. Ho sir.
Q. How long have you been in the paper business?
A. All my life; twenty years possibly.
Q. What are your duties in connection with the company with whom you work?
A. I have the overseeing of their business in general, buying and selling and everything else.
Q. Are you familiar with different grades of paper and cardboard?
A. To the extent that I am able to hold my present position, yes sir.
Q. And does that necessitate your knowing the different grades of cardboard?
A. Yes sir.
Q. Are you familiar with the rules governing different grades of paper end how to test them?

Objjeotion was made »s to the revelency; the oojection was overruled and the answer to the question was "yes sir".

Q. Do you know wh'-t ten-ply card board is?
A, Yes sir.
Q. How is the ply of card board determined?
A. By points, for instance thirty six points would be a ten ply board.
Q. And how do you arrive at the number of points in the board?
A. By guages of different kinds.
Q. Is there any ste.nde.rd gusge used by the paper business?
A. Hot that I know of, we use several different guages in our business.
0. Heve you- eny instrument in Court for testing or determining the grade of card board?
A. I might test it with this (indicating)!
0. Wh-it is thst!
A. This is a micrometer.
Q. Is thst used es v standard for testing card board!
A. Yes sir,
Q. Are you femili®r with the use of & micrometer?
A. Yes sir.
Q. I «¡¡iycu. the two pieces of cprd board whioh hove been introduced in e.videnoe end ask you to determine by that micrometer the ply of thst c?rd board?

Objections because it had not been shown that the micrometer w-s the standard guege. Objections overruled.

Q. Tsist the two pieces of cord board hended you?
A. (the witness makes a test with the micrometer end says)

This board here, mefcked defendant two is easily as thick as the small sa-mple marked defendant 1.

Q. What ply are both of those boards?
A. They are ten ply board.

On cross examination.

Q. Would you say c-s an expert in the piper and card board business thst a delivery of oard board such as defendant two whioh is the trisnguler board w=s up to & contract under whioh a oard such as defendant one was to be delivered?
A. Yes sir,
Q. Is the board defendant two as good quality as the board defendant 1!
A, In my opinion it is,
Q. Why is it -that board defendant two the triangular board is not as stiff as the one marked -defendant one?
A. Well one res son is thst you may- take a boa-rdj-ita paper has grain the seme as wood so you may take a piece of paper end fold it wi-th the grain end it will fold easily, fold it opposite the grain and it will fold herd, you oan take s. piece out like this and if the grain runs this way it will fold easily and will seem’ to be weak, if you fold it opposite the grain it will a to be a stiff piece of paper; it is a question of the way you fftlfiL it end bow the grain runs; new reslly to tell just how it would test by the "feel" th*t is so for as strength is concerned would be to put a piece like this like defendant one—

This witness being asked to meke several tests of Humber 1 and number 3 does, sc and the question is then propounded to him:

Q,. is it not s ftot that defendant 1 tests only thirty seven and the other thirty nine or nearly forty?
A. Ho, that would prefe that defendant two is a heavier paper than

Witness being asked the name of the instrument with ■which he tested the small one end the other EfxiSKx exhibits answers thet the instrument is e. miorometer.

Q, How is it not a. fact with regard to ten ply board that there are msny qualities of better
A. Yes sir.
one Q, Then/ten ply board would not necessarily be as good as another ten ply board would it?

On reexamination:

Q. Are the boards marked D. 1 end D, 3 of the same quality?
A. Yes pratioally, in my opinion it is the sene quality.

With the exoeption of marking and offering in evidenoe, the oard boards annexed to the petition, both plaintiff end defendant rested their case.

Webster's International Dio.tionery defines the word "micrometer" as follows^

A oallper or guage with a miorometer sorew for measuring dimensions with great aoouraoy.

And other stated authorities appear substantially to give the seme definition.

Under this standard and having reviewed the testimony in full of the expert in this case; who was in no. manner financially or otherwise connected- with plaintiff company, who used the machine in question in order to a?oertdn the ply of the,\. oard hoard, all in the presence-ojf .the Judge below., we are .bound ■U believe- from.' this testimony, that '• theqgoods furnished "" defendant were of tile same cnaxaover as ordered by them and were delivered e.s suoh.

Trreepeotive and independent of this fact, we have the Distriot Judge, who sew the witnesses and who heard all and the testimony in this oase, fiaat saw the machine and how it vis.s used, wid he rendered judgment in favor of plaintiff as and/there seems to be no manifest error in his opinion, his judgment must be affirmed.

For the reasons assigned, it is ordered, adjudged and deoreed, tlu-t the judgment of the Court aquo be and the same is hereby affirmed, costs of both courts to be paid by the defendant.

-judgment affirmed-  