
    (101 South. 389)
    No. 24802.
    NEW CENTRAL CANNING CO. v. GOODMAN & BEER CO.
    (June 27, 1924.
    Rehearing Denied by Whole Court Sept. 25, 1924.)
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    Paul L. Fourchy, of New Orleans, for appellant.
    Sol Weiss, of New Orleans, for appellee.
    By Division G, composed of OVERTON, ST. PAUL, and THOMPSON, JJ.
   ST. PAUL, J.

On March 12, 1920, plaintiff sold defendant by sample one carload of tomato paste, containing 809 cases, at $8 per case, payable in SO days.

Shortly thereafter defendant, a wholesaler, received complaints from the retailers that their customers, the consumers, would not use the paste because they found it either too light in color (watery) or too dark (over-cooked); and accordingly the retailers were returning the goods and claiming credit.

Thereupon defendant examined into these complaints; and believing that they were well founded, allowed the credits and refused to pay plaintiff, tendering back the goods purchased as not up to sample.

The matter was submitted to the arbitration of one George P. Thompson, who had been 25 years in the wholesale grocery business, buying and selling articles such as the merchandise in controversy; during which time he had been president of the Wholesale Grocers’ Association for 10 years.

He made an examination of the goods, first out of plaintiff’s presence and afterwards in plaintiff’s presence and at its request. His finding was that the goods were not a satisfactory delivery, because not “standard,” by which he meant not merchantable; i. e., not salable.

As a witness he confirmed his finding; and whilst there is the usual conflict of testimony, between the witnesses for one side and the other, we think (and the trial judge also thought) that the preponderance of the evidence showed that the goods were not up to sample.

Decree.

The judgment appealed from is therefore affirmed.

Rehearing refused by the WHOLE COURT.  