
    D. Rau & Son. -vs-Mrs. Isabel Smith.
    No. 7846.
    Court of Appeal, Parish of Orleans.
    By Dlnkelanlel. J.
   Plaintiffs institute this suit under a written Contract of Sale of furniture signed by both plaintiffs and defend ant. The amount in question is $455.00; |350.00. of whioh is for a bed room set; $300.00. for another set and $5.00. eaoh, for three kitohen tables.

Alleges further, that this furnture was pueohased by defendant from plaintiffs, and was(and is stored in their furniture establishment in the City of Hew Orleans, and on whioh furniture there were paid to plaintiffs by defendant the sum of $75.00. cash at the time of sals, and there were to hare been payments subsequently at different intervals of |45.00. until the entire amount of balance was paid.

That sinoe the payment of the $75.00. in question, made at the time of the purohase, there has been nothing p paid.; that the furniture in question is held by plaintiffs, at their store, on whfcoh they claim a.vendors lein and privelege together with Interest thereon for the several amounts past due.

Defendant, whilst admitting her signature to a oheok of $75.00. paid to plaintiffs, denies that she ever went into their store, but asserts that shs believed she was going into the establishment of Barnett whioh adjoins the one of plaintiffs.

Defendant, further more alleges, that she, under this belief, in payment of the $75.00., signed a oheok whioh at that time she did not know that the oheok was made payable to the order of plaintiffs; that she did sot see the oheok when she signed it, and would not have signed it had she had known that she was not dealing with the firm of Barnett.

The last and final oontention of defendant is, that on inspeotlon of the goods, the furniture in question, they wore not Ike same oharaoter of goods whioh she had -8-«greed to purchase; that they were all of an inferior qual -ity, not as represented , and she prayed for judgment for the return of the $75.00.. in reoonvention, and that plaintiffs suit lie dismissed at their costs.

A oareful examination of the testimony in this^case oonTinoes us, ¡ that 1¶- she did not know she^dfeallng with plaintiffs firm there were many evidence of that fact before her; large signs were in front of the place, giving the names and the business dealt; those signs being distributed also in large print on the various floors of the establishment; the oheok whioh she gave for the $75.00. and whioh she signed for that amount; the contract of sale which was signed by both plaintiffs and defendant all denote that if she did not know she ought to have known what she was doing and with whom she was dealing. As to the character of furniture which she purchased, the evidence satisfies us, that this furniture originally was in the lower part , on the second floor, of plaintiffs establishment, there exhibited to her. She had every means of recognition, and at hex request, stating that she wanted this furniture on the next day, after completing the transaction above referred to, plaintiffs with their men employees of the establishment removed the furniture from where she had seen it when she bought it, to the fifth floor whioh is used for packing purposes, in order to deliver it to defendant the next day at her residence which is described in the bill of sale.

Now, it is evidenwe to our minds, that her various attempts both in A in the Criminal Courts and in the First City Court, in a civil proceeding, and on appeal from the deoislon' of the latter Court to this Court, reversing the judgment of the Fieri City Court, detor-maining the issues tfae-iesuaa there involved which was a question of the return to her of the $75.00. whioh had been paid on aocount, and whioh was deoiled by Ble Honor Judge St. Paul, presiding Judge of this Court, against her contention and whioh judgment became final, and .finally this suit whioh now involves both a dismissal of plaintiffs aotion together with the return of the #75.00. as ordered by His Honor, the Judge of the District Court.

We are satisfied without quoting, which is entirely unnecessary and would serve no usefull purpose, all the testimony in this suit; that no unfair advantage was taken of the defendant by these plaintiffs; she was treated as all other customers doubtless are; she bought and they were ready to deliver at anytime the goods whioh she had bought; her entire efforts were directed to the return of the $75.00. whioh she had paid to plaintiffs on this very transaction, and her evidence that she was not tendered the exact furniture that she bought does not meet the requirements of the law in that she had to make that part of her claim oertain, and she has failed utterly to do so.

The only law applicable to a case of this kind is found in Civil Code under Articles 3456- 3467- 3468- 3469- and finally Article 3487, and all of these artloles combined are to the effeot, that the seller is not bound to make a delivery of the thing, if the buyer does not pay the price and the seller has not granted him any term for the payment.

The vendors privelege for the balance due being the sum of $380.00. has not been paid, and they have kept this furniture in tact ready for delivery from the time of the purchase until the present time and they are entitl-led to the relief prayed for.

judg^ní'o^lIe^Sfs^gíál^úrt^^e^elsVSga6^^ the plaintiffs have judgment for the full amount claimed, the sum of $380.00, together with legal Interest froa 10th. December, 1919, until paid and with recognition of vendors lein and privelege on the property sold and that the reconventional demand be rejeoted. Defendant to pay oosts of both Courts.

{ Judgment Reveredd and Rendered. )

July 16th, 1920.

On Application For Rehearing.

The defendant charges that there was error in the judgment herein for three reasons:

Xo Because the judgment of this Court included a sum of $110 claimed in a supplemental petition, to which she had filed no answer and upon '-hich no default' had been taken. She relies upon C. P. 359, 421, 606 & 4 and 14 A., 574; 21 A., 461; 25 A., 166, and other authorities.

¿✓2. _ These authorities apply in all cases where the supplemental petition prays for a relief not included in the original petition, or where the defendant has* a right to answer before the new issues raised in 'the supplemental petition can be con» sidered, which is not the case here.

The plaintiff sued for a balance claimed to be due by defendant for the pjice of f^ifniture, payable in monthly install•S', ft ments^or $270, were due at the date of the filing of the suit, and three installments, or $110, oecame due at the time of the filing of the supplemental petition and before the trial of the case.

The bill sued on is as follows:

1 C. V. Bed Room Set $ 250.00

1 Am. W. Bed Room Set 200.00

3 Kitchen Tables 5.00

'Subject tó a credit of $455TOO 75.00

$380.00

The original petition setSforth these facts and prayed for judgment for the matured installments, amounting to $270.00, with reservation of the right to claim the further sum of $110,00 when "Che dame shall mature*1, and the petition concluded with a prayer "for all costs and for general and equitable relief".

There was no necessity f^r filing the supplemental / petition; according to the original petition alone, plaintiff was entitled to a judgment for the remaining three installments \ which had matured pending the suit and prior to the trial of \v the case, under and by virtue of the pleadings and evidence r and his prayer for general relief.

N Under the prayer for general reli.ef the Court may render such judgment as could "be given in a new suit to avoid-i \» circuity of action, and for everything justified by the origin \ Ni^ial petition and evidenoe. 1 H. D., 734 (4) Nos. 5, 13; 106 La., 58; 125 La., 595; 144 La., 216.

"There was no necessity for the filing of the amended petition, as plaintiff would have had the right to have offered the claims therein contained against those in the amended answer, without any amended petition whatever, x x x Defendant after-wards moved for a continuance on the grounds, that he was entitled to service of the supplemental petition, and was surprised by its averments. As it was unnecessary to have filed the amended petition the service thereof was not requisite" 13 A., 412. See also 9 A., 483; 14 La., 418; 7 N. S., 646; 3 M. 403.
■fS "Where the original petition would sustain evi-'fH N^denoe, to introduce which an amended petition is filed, '4s J N Q v ^the cause raayhe assigned immediately for trial without X ^ 'IN ■, 00 ^answer to the amendment or time given to defendant". 6 A., 531.

^ In this case, as it was unnecessary to file an amended petition to pray for the relief therein demanded, and as that relief could be granted under the allegations of the original petition and the prayer for general relief, the supplemental petition can be ignored, and the defendant cannot claim -lio right of service thereof and citation, nor can she allege as error that she had not answered it, and that no default upon it had been taken.

But the defendant went to trial without raising th. objection now made. In Bataille vs O’Neil, 3 A., 229 the Court said: When the defendant goes to trial without objecting that no default had been taken or issue joined on the supplemental petition, the substance of the démand not being changed oy the supplemental petition, and there was no surprisp, and the defendant had a fair opportunity to make his defense, it will be presumed that he waived a mere informality which did him no injury.

Defendant who goes to trial cannot afterwards object that no issue has been joined. Barriere vs Mc Bean, 12 A., 493; 13 A., 455; 14 A., 925.

— tfor was this point raised on the argument of the case in this Court,

MA rehearing will not be allowed on a point not made in the argument, nor noticed in the points filed". 1 H. D., 107; No. 5, 8, 9, 12, 15; 47 A., 1470; 111 La., 979.

flC* — Hor is it necessary th^.t a default be taken on a supplemental petition to make a tacit issue. In the case of Estlin vs Ryder, 20 A., 251, the Court said:

"Issue ocing joined in this case one. tv e amendment oeing properly allowed thereafter, tne re '«s.s no necessity for a default to make a tacit issue, x x x The right to answer to an amendment does rot necessarily imply the duty on the part of the party a lending to = ake a tacit issue if the right is not exercised".

—• But it i8 not in all cases f'at the supplemental .petition and citation mast be served, or that the defendant may claim the right to answer it. ^ 3 M., 398; 12 R., 138; 7 N. S., 647; 7 La., 188; 6 A., 531; 9 A., 483.

XL. The second error charged is chat tne defendant oought a "Circassian Walnut oedroom set" selected cy .erself, and that 'he "bedroom, set" tendered ..er, to o_-.ote ' er own testimony, "was not tne furniture <■ e 'ad purchased x x it was a much inferior kind of light -rood11 .

The deflendant is tne only witness, "'ho sup jorts this allegation; t*’-e nlsinti^f *nA ‘to ot~er ”'itne«re° deny it and assert positively that the furniture cef^'■'■‘nt oou" i 'ns tne same furniture which was tendered to her. We do not believe that the defendant has made out her case of substitution. A circumstance agiinst her is the fact that while she finds fault only with the Circassian Walnut set, sold to her for $250, she refuses also to pay for the other American set and for the three kitchen tables, of the value of $215, concerning which she makes no allegations.

III. The third ground of complaint is that the contract contains the following clause:

"I do hereby consent and agree that the said property and the title to the same shall be and remain the property of said The Bee Hive Furniture Store until fully paid for as above agreed, and if I neglect to pay said installments when due (time being the essence of this contract) said The Bee Hive Furniture Store shall have the right* and privilege at any time thereafter to demand and take away its said property, and I agree to forfait f.nd lose all previous payments made the eon, the same being treated as rents";

fiat plaintiff oy retaining possession of fia furniture and by said clause has waived er.y claim for a specific performance and has itself limited me ..easare of ¿cunares for che non-payment of all the in-csllments to the sums paid on account, in this case to $75.

The answer to this contention is contained in the case of the Barber Asphalt Paving Co. vs St. Louis Cypress Co., 121 La., 152.

The Court said:

"A so-called conditional srle, or sale by which the vendee is to become at once u iconditional3y uound for the price, cu*d the vendor is to continue to »c o'-'ner of the property until the .'.'••ice is fj-iid, is not pos^ioln u.-'de-c t> e in-'s of f: is State. A petition '-v.crcin the vender urmer such a contract cíalos the ownership of bh* property sold Shows no cause of action".

y~J/ Lastly the oefencUut contends c->t the jud,\ent of chis Court ?.*ould be"co.:?itioned on pi? i.i tiff ’ s ’'olivary to her of ore Circadian ir,..: o^’ro^r. set". L c. It is cue duty of the ■buyer first to ‘pay the price before be can claim delivery of the thing sold. ,

C. C., 2487 (2483)

"The seller is not bouncí tó\'!*^s^ a delivery of the thing, if th:e_b ;'b,o)tv^a^tbe price, and the seller has not firantedJo&~TinyN^Ea, f or the payment". 2 Ct. App. 308.  