
    NO. 8150
    JACOBS CANDY CO VS DENNIS SHEEN TRANSFER CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
    
      
    
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By his

Honor John St, Paul.

Shis ease oomaa before os on appeal from a Judgment maintaining an exception of no cause of action. She petition is lengthy, hut recites in substance that defendant, as "Toyman for plaintiff, hauled oertain barrels of shelled nuts, but refused to deliver them unless plaintiff would gire"»noloa*" receipt for them; which plaintiff refused to do, because one of said barrels had troten open and some.of its contents had been damaged, fh&t notwithstanding repeated demands, and warnings that said nuts would deteriorate if not delivered at onoe, said defendants delayed nine days before attempting to mate delivery anew. Ihat thereupon plaintiff found the nuts alrapdy badly deteriorated, and insisted on the presence of some one in authority from defendant to assist in the examination; and whan this oould hot be obtained, plaintiff, plaintiff refused to aooept the shipment. It is not alleged that defendant then insisted on a olea* reoeipt, nor is the contrary alliggd or clearly to be inferred. Ihat defendant waited again 20 days before onoe more tendering delivery, and this time sent its duly authorised representative, in whose presence the whole shipment was then examined and found unfit for use. Share are some allegations, about a demand on the part of plaintiff that defendant should agree to pay the oost of separating the good from the had out of the shipment; but this is not made clear.

On the whole, however, we do not think that this case should go off on an exception. Certainly defendant was originally in the wrong, and it is equally certain that some damage occurred in the nine days between the first and second attempt at delivery. It may be that, after that plaintiff was insistent upon things on whioh it had no right to insist, and this contributed to the further damages suffered thereafter; but we oannot determine whether those demands were or were not reasonable until we have heard the evidence. And whether or not it will be possible to seperate the damage whioh oqcurrod before plaintiff came to be at fault (if it so oarae) oan again be determined only after looting into the evidence.

It is therefore by no means certain that plaintiff oan recover nothing at all; and such being the cash the Exception of IIo Cause of Action must be overruled, for an exception of no causa of action should not be sustained unless it is clear that plaintiff can recover nothing under Ilia olaira; it the olaim, ha -only doubtful the 910 apt Ion should he overrule'! and the oaae heard on the marlta., Orleans Appeals; 119 la 106; 122 la 831-835.

December 12th, 1921.

The judgment appealed from is therefore reversed; and the exception of no oausa of action is overruled and the case remanded for trial on the merits aocording to law; defendant to pay the oosts of this appeal and the other oosts to await final Judgment.

Hew Orleans la,  