
    NO. 7712.
    ALBERT WEIBLEN MARBLE & GRANITE CO. VS WALTER VAN BENTHUYSEN.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   uno n.

3t. Paul, J*n P-Q.

Phis case i ivaiv* s onlv a "ves+i'-u o-" fact. KL«i* itiff ^ cartón«t«d to f-'ni-h a-n-’ erect for defendant a markle mantel, and did finish and start to erect such a mantel; but defendant stopped the work and refused to nay for it on the ground that the mantel was not as contracted for.

fJ?he burden of defendants main complaint, and the nuroort of his own testimony and that of his principal witness in supnor.t thereof, cannot be better stated than by giving the impression produced on the mind of an architect whom he called in to examine and nass unon the mantel, and who wrote defendant as follows;

"x x x r I understand from you that the new mantel was to be a reproduction in detaP and workmanshin and finish of that in the drawing room, excepting- that the elaborate carvings in panels and wreaths «round the columns were to be omitted: x x x x x the designer* has enti^elv lost sight of the spirit of the design and there is only th< vaguest resemblance to the original*"

Plaintiff eumhaticallv denies that "the new mantel was to be a reproduction in detail and workmanship and finish of th«+ in the drawing-room, e,-ce^tin*- etc", but on the contrary, says that the mantel was to be finished and erected according to « detailed sketch submitted to and «nvnroved bv defendant* and he «nd his •nrincinal witness so swo«r.

t>0 that It almolv a "uastlon o+ what taatiwony as are to accent.

I.

wo accent the testimony on "behalf of nlainóiff and for these reasons oarticularly. Admittedly several sketohes were submitted to and er*nii#ed by defendant* and these show on thei^ face changes not only in details but ALSO in style and construction, all of which are so nromineht as to be noticeable at a «lance; the first, even bears a uencil memorandum showing that the very height of the mantel was to be reduced from nearly five feetoto less than four* which notation was evidentlv made whilst this sketch was under discussion. It is uribelivable therefore that these changes were not observed. It is also unbeliwable that, a skill for unskilled J dr**ft»m*n **honl* ví’ve three, rucees*ive efforts to s’/'toh a simple ■ physio.-I o'1 ject *• Adin*. right bef-' *e him, and ve v e so oii'Ti ly fail*’ ' . the attempt nc t0 produced "onlv the so vaguest res^mblanoe to the original.” Thi* i~ ob^io^s -s to have drawn from one witness when shown a working drawing, the alleged protest, ’I do not see the neoe*sitv of that since vou have your model right here.”

II.

1+ is olaimed that, plaintiff admitted he h«d not. carried out **s contract, «nd offered to take back his first f«ilu-e and make another (mantel not failure).

Plaintiff **vs he made thie offer n’*»,erv ironically", end this is more th*n likelyj he h«d not nsreed to duplicate the drnwinir room mantel, "tid had Bald from the fi'itélf start that he could not duplicate it’ for the uric© which defendant wished to pay and hence could never any serióse intention to do ao; th« whole testimony shows that he was plainly in no such humor.

But even if seriouslv made his offer was clearlv one of compromise, which must, fall for two reasons 1* It was not in writing (0. 0. 3071), and 2. It was rejeoted (Sec Tietter of do* 17.)

I III.

For the rest, the complaint about material and workmanship sterns nurelv an afterthought. Defendant saw both, when the work was about finished but not yet set up* and yet made no complaint about either; it h»poene<T ho**awer that when it was Oui»i* up it did not (according to the t»*te of defendant) hn^Tnoni'i" with its surroundin-'s, * ^'ii^lv in sise* and so the work won stopped, and now fsuits showed up plentifully where none n«d been seen oefore.

■m.- tr_i .¿d^e found for the d fenda.it* but a 4 the tAstimciv '•*«« all T.mr3*i ou" 0/ his .“'re::once fj..l ^ hesitation in disagreeing; ' ’ his finding.

Xha judgment appealed from Is therefore reversed, and It la now ordered that plaintiff have Judgment against defendant for ths a urn of Three hundred and ten dollars with legal Interest from judicial demand and ths oosta of both courts.

New Orleans, La, April 5th, 1920  