
    No. 3334
    Second Circuit
    AMERICAN LAW BOOK CO. v. JONES
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    Rusca and Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    James W. Jones, Jr., of Natchitoches, attorney for defendant, appellee.
   WEBB, J.

Under contract of date September 29, 1920, defendant agreed to purchase from plaintiff certain law books, being volumes 18 to 40, inclusive, of “Cyc.” and “Corpus Juris,” with yearly annotations, the price agreed upon being ninety dollars for the volumes of Cyc., eight dollars per volume for Corpus Juris, not to exceed seventy volumes, subject to a credit of sixty dollars for the work, and ten dollars per volume for the annotations.

Twenty-one volumes of Corpus Juris and one volume of annotations together with the volumes of “Cyc.” were to be delivered immediately and other volumes of Corpus Juris and annotations as same were published, and in settlement of the books for immediate delivery, the price of which was two hundred and sixty-eight dollars, the discount of sixty dollars was allowed and for the balance defendant paid thirty-eight dollars and gave seventeen notes of ten dollars each dated with the contract, maturing at one to seventeen months, respectively, from their date and bearing six per cent per annum interest from maturity, and it was agreed that defendant would pay for the other volumes of Corpus Juris and annotations as delivered.

The defendant paid five of the notes and this action was brought after maturity of the remaining twelve notes to recover judgment for their face value and interest, and for judgment for the price of three volumes of Corpus Juris and one volume of annotations alleged to have been subsequently delivered under the contract together with six per cent per annum interest thereon from the date of the alleged delivery of the books as provided by the contract.

The defendant answered pleading a general denial, under which he was permitted, without objection, to testify that volumes 17 to 21, inclusive, of Corpus Juris had not been delivered and that volume 14A of Corpus Juris (one of the volumes alleged to have been delivered as soon as it was published) had not been received, and defendant contends that plaintiff had thus violated its contract and should not be permitted to recover on the notes or for any books subsequently delivered.

The evidence shows that a shipment was made by plaintiff of two boxes of books on October 19, 1920, presumably including all of the volumes of. Corpus Juris published at that time, or the volumes which defendant claims were not delivered, and although plaintiff repeatedly wrote to defendant requesting him to give any reason for non-payment of the notes at maturity he did not make any complaint whatsoever, and the claim that some of the books were not delivered was not affirmatively made until the date of the trial, more than seven years after the shipment had been received, and giving full credence to defendant’s testimony that the volumes which he positively states were not delivered, we do not think that, in view of his laches and failure to make any complaint whatsoever, he should be permitted to refuse payment for the books which he admittedly received on the ground that plaintiff had violated its contract.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff, American Law Book Company, have and recover judgment against defendant, James W. Jones, Jr., in the sum of one hundred and twenty dollars, the face value of the twelve notes of ten dollars each, with six per cent per annum interest thereon from maturity, to-wit: June 1, 1921, July 1, 1921, August 1, 1921, September 1, 1921, October 1, 1921, November 1, 1921, December 1, 1921, January 1, 1922, February 1, 1922, March 1, 1922, April 1, 1922, and May 1, 1922, subject to a credit of forty dollars, and in the further sum of twenty-six dollars, with six per cent per annum interest from January 1, 1922, and all costs of suit.  