
    Tony Graffagnino vs P.E.Voorhies,Appellant.
    No. 8461
    Charles F.Claiborne,Judge.
    October 1st 1923.
   Charles F.Claiborne,Judge.

This is a suit for the price of pecans sold and delivered.

The plaintiff resxa.es in- Opelousas' and the defendant in Hew Orleans.The plaintiff alleged that in December 1919 he sold to the defendant pecans in the quantity and for the prioe mentioned in the annexed itemised statement,Viz:

Dec 1st-21 bags 1549 lbs. at 18 ¢ $278.82
" " -11 " 706 " " 20¢ 153.20
" 2nd- 2 " 162 " " 20¢ 32.40
" " 12 " 1030 " " 18 ¢ 185.40
" tt 1 " 129 " "
" 5 " 428 "
557 " " 20 ¢ 111.40
Total $761.22
Credits
December 24th 1919 Cash $100.00
300.00 400.00
Balance Due $361.22

For which plaintiff demands judgment.

Plaintiff swears to the oorreotneBS of his aooount

The defendant exoepted that the petition was vague, general,and indefinite and.dlsolosed no legal right or oause of aotlonBThe exceptions were overruled.

The defendant then answered with a general denial. He further awerred that although he resided in Hew Orleans he was * a Citizen and voter of the State of Mississipi " and his home was at Bay St.Louis.

He denied that he was indebted to plaintiff as allegad in plaintiff's petitionjhe denied-all the allegations oonoeming the sale of the pecans to Mm, as set forth in the itemised statementjhe denied the payments oh account and thebalanoe due;and. denied amioable demand.

The defendant did not swear to his answer;Die left it to hiB attorney,who under the pleading act,verified it from "information and belief" .

Upon the trial of the case the question of oommoranoy was not raised.The answer was completely Ignored.The defense was that the defendant had purchased only a few sacks of peoans while the plaintiff sent him 40 odd in a few days;.that the price agreed upon was 13 oents per pound and not 20 oents; and that the peoans purchased by him were exhibited to him and were sound while the peoans delivered were bad;and that he paid $300 on account on the condition that plaintiff would deduot 800 pounds for the bad peoans.

Evidence in support of those defenses was admitted over plaintiff's objection.

I There is nothing in the contention that plaintiff shipped more peoaas than defendant Mad purohaaed.Defendant received and kept them and must pay for them, 0.0.1816 (1810) Actions without words,either written or spoken, are presumptive evidence of a contract,when they are done under oirsumetanoes that naturally imply a consent to suoh 'contract* To receive goods from a merchant without anv express promise and to use them,implies a contract to pay the value."

M II The price claimed hy plaintiff seems to be established Plaintiff testifies that the shipment of peoans was accompanied by an invoioe.This seems true.Por in a letter dated Deoember 24tb defendant writes to plaintiff:

"Out your prices- Small 14¢
Medium 18¢
Large 22¢
Mixed 18¢

When plaintiff's attorney made ah amioable written demand prior to filing milt,defendant did not answer and in hie anewér,he saya net a word about an overcharge.

But as earning that defendant Is right, bite difference between the two prices Is but two senta a pound.Plaintiff efiárgeí defendant with 1436 paundsat twenty Centa,an eioess ef #29.70 •ver eight«tn cents.Defendant J$as never offered to pay the priee at 18oeniBtnor at any other price.

III The pesans were pnrohaaed and 'shipped.'and delivered and received in Deoember.it does not appear that any fault was found with the peoens until February 6th 1920' when plaintiff met defendant at the railroad depot and asked Sim' for Ike money. Defendant went'inside the-depot and wrote a cheok for #800 to the orfivr of plaintiff,and upon the fade of the o&eok .wrote these--words: n .Subject to bad peoahs, to be .retumed.Plalntlff swears he told defendant»/to ship Sim baste whatever bad peoans áe Mad.The defendant testified that Me told the plaintiff that he would not 'p&y.hi® • "unless he dedusted 800. pounds at. is eents a -pound." That would make' #144 Y''deducted from #*61.26 would leave a .balante 'ef #217.86 wfcdoh the defendant, admits In Mis- testimony'&# ewes the plaintiff .Tet hé never returned any pecans^ nor made any effer ’ ■to/.pay, thoir.price jnor any admission,in his answer, that Be owed any part or it.On the contrary,his attorney,from information /received from him,'we’must presumo^, stated^ nadar oath’^that Mé owed . V «othingiftte'testlmQny ef á defendant under suofi otraumatanoe»,. ■■ "•jew., j¡úli *a»**ña -liteelf «tó-,*#* dwi.;;;

The Judgpaent ef:. the.!Dlatrlot^pctU‘t was la f aver-of . ' /plaintiff. and we-'.*eT*m'''e*l,lÍi*átm>t.í>d nod, ..we believe .lt ’ iB.. eórreot» We'liare «sw/given 'this ease mtt»8 attention because it ..va»' thkett" Yp/and: ¿ubdittea; on brief»' in. t$e, absence of defendant * s counsel . ■w^o/waa '«sg§d^t_'lia/Motley Ceu»t.put'.$e Pas'h'ot.;ffá.vó.y«d us'with a brief.

'.-swoh-.a- -penalty^

Judgment affirmed. October 1st 1923.  