
    NO. 8682
    COURT OF APPEAL PARISH OF ORLEANS
    FELIX F. DUPLAIN versus PHILIP PATORNO, SAMUEL COSTE, et als, In Solido.
   Dinkelspiel;

fhla suit is based on a oontraot in writing for the sale of an eleotrio piano for the sum of #350.00, plaintiff alleging that 4n August 20th, 1921, defendants, under the name of.the Catholic Athletic Club, bought from him, sne peerless-trio orohestra eleotrio piano, for the prloe and sum of #350.00, #150.00 to be paid in'oash, and the balance thirty days thereafter; and that said piano was delivered at their plaoe of business, wnere it has' been in operation ever slnoe, end alleging further thai, -one first payment or ^l&O.OO was mo.de by oheok of defendants, signed- bv Samuel P. Costa, made to the order of Uhii Felix J. Duplain, which oheok when presented for payment at the bank was dishonored. ’Wherefore he prays for judgment.

The defendants.substantially answer that they bought the piano in question from plaintiff, whioh vías to be delivered in first olass condition on August 20th, 1931; alleging further that the piano delivered was not in first olaee operating condition, but that plaintiff oontinued to work on same without success, plaintiff was notified by registered mail latter that the oontraot was cancelled as he had fail nd to carry out'his part thereof, that said piano never did work, could never be used by the theatre and that another piano was purchased by aerendants and put in operation, henoe the bank upon whioh defendants drew the oheok in question was ordered not to pay same, end the piano sold by plaintiff was tendered and has been and ie at his disposal, and that plaintiff wa.s ordered to-remove said piano -from the premises, beoause he had failed to carry out his jontract; hence preyed for judgment.

An inxasikgitfciaHisfxikai investigation of the record jroves to our entire satisfaction that plaintiff sold the eleo;ric piano in question as a good; sound, working instrument, that he knew, the obleots of defendants in purchasing same were to install l,t for public ..exhibition, and plaintiff warranted the Instrument to do all that ws.s required of an instrument similar tax** to the piano in question, finally installed the piano-ana •sithough plaintiff worked for bourse both on the day of installation, end subsequent days to endeavor to make 1ihe piano ple,ysuco.essfully, failed utterly in doing this, and after repeated efforte it being shown by abundant testimony, that the ele.otrl'o piano in question oould not be worked and did not-..aooompllah its purpose, plaintiff was notified-by registered mail letter, which he reoeived, tnat tne oontraot was at an end, that the piano in question oould not be used; that it was not the in* strument which he, plaintiff, had represented it to pe, played no tunes of any kind or oharaoter, simply made a noise, weak ? t that! henoe absolutely useless, and although .plaintiff endeavored to do all in his'power to make the instrument accomplish its objects, he failed in all his'attemps, henoe the instrument in question not coming up to the contract and reprewdrrantlea sentation, and/witxasartas made by plaintiff, being unable to perform that which was represented it would, was .entirely useless, henoe we consider that defendants are entitled to judgment.

Jan. 15th, 1923.

We have not been favored with a brief or argument on either side in this case, but we find that:

"When any commodity is sold by description, as shown-in this oase, and the description is not substantially satisfied by the oommodity delivered, tne purchaser is not bound-to accept it".

See Vo. 94, Southern Reporter, p. 83-

"A misrepresentation by the seller oonoerning the goods sold may be grounds for evoidlng the oontraot."

35 Cyo. p. 73. and authorities there quoted»

The Judge aquo having seen and heard the witnesses in this case was m a better position than we are to judge of the truthfulness of the testimony adven: his opinion ana decision were in favor of the defendants and we concur.

It is therefored ordered, adjudged and decreed, that the judgment of the Court aquo be and the same 'is hereby affirmer plaintiff to pay costs of both Courts.

-Judgment affirmed-  