
    T. W. Pipes v. E. Shiff & Co.
    Where a buyer has been informed, before the sale, of the danger of eviction, he cannot withhold! payment of the price. 0. C. 2535.
    from the Fourth District Court of New Orleans, Reynolds, J.
    
      W. R. Sennen, for plaintiff.
    
      LeGardeur, for defendants and appellants.
   Voorotgs, J.

The defendants being sued for the price of a certain quantity of molasses, resisted the payment, on the ground that the molasses, on arriving at the port of New Orleans, was sequestered at the suit of G. W. Glorio, who claimed the same under a prior sale from the plaintiff.

The plaintiff was called in warranty in that suit, and the molasses released on the defendants’ bond. The tradition or delivery of the molasses to the defendants, took place on the plaintiff’s plantation in West Feliciana, the former having been previously informed of an agreement to sell the molasses to Ola/rlo, and the failure of the latter to comply with his obligations. On the advice of the defendants’ agent, the plaintiff waited two or three days longer, to see if Glarh would call for the molasses, at the expiration of which time, the sale and delivery to the defendants took place. This, coupled with a letter from Glarh to Rvpes, is the only evidence we have before us in relation to the alleged disturbance. Glarh, in his letter, tells Rifes that he has seen his factors and informed them that he would take his molasses and cistern sugar at the price agreed upon between them, and be at his house in three or four days, ready to receive all, bringing orders to him from his factors for delivery, &c. Inasmuch as the defendants were apprised at the time of sale of the transaction which has given rise to the suit in question, we think, under the textual provisions of Article 2536 of the Civil Code, that the defence is clearly unavailable.

We are of opinion that the circumstances of this case are insufficient to authorize us to allow any damages to the plaintiff, as prayed for, on the ground that the appeal is frivolous and was taken for the sake of delay.

It is therefore ordered and decreed, that the judgment of the District Court be affirmed, with costs.  