
    No. 1330.
    Andrew Robinson v. John Clark.
    A made a contract with B to make a cotton press, and paid him the price agreed upon in advance; B made the press and pointed it out to A in hi«* foundery as his property; A afterwards sent for the press, and was informed that B h-ifl sold and delivered it to a third party; A then brought suit for ; the price be'had paid, which B re-ihied, on the ground that it was a suit bo rescind the contract, and he had not been put in deiault according to Art. 1905 of the O. 0: Held — 'That B, by his own act, having put it out of liis power to deliver the press, could not avail himself of the plea of default; Held — further, that B was bound to return the price which he had received, with . interest, to A.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J.
    
      Miles and Thomas Taylor, for plaintiff and appellee.
    
      Buchanan Gilmore, for defendant and appellant.
   Hyman, C. J.

Defendant contracted to make a screw baling cotton press for plaintiff, and for its price plaintiff gave him $750.

Defendant made the press, placed it in his foundery and pointed it oul as plaintiff’s property. Plaintiff did not take it away at the time, bm afterwards wont to defendant to get it, .

Defendant had not then the press; had sold it to a third person, and could not deliver it to plaintiff.

Plaintiff brought suit to recover from defendant the money paid for the press, with interest.

Defendant regards this suit as an action to rescind the contract of sale, and to recover the price paid thereon, and his defence is, that he was not put in default in the mode prescribed by Art. 1905 of the Civil Code, and that he has always been willing to deliver the press.

We do not think it necessary for plaintiff to make demand of defendant as required by the article cited.

Defendant, by his own act, put it out of his power to deliver the press, and it would have availed nothing in making the most formal demand on him. Lex neminem cogit ad vana seu inutilia peragenda. The judgment appealed from is in favor of plaintiff. We perceive no reason why it should be reversed. It is affirmed at defendant’s costs.  