
    NATIONAL MANUFACTURE & STORES CORPORATION v. MOLLENKOPH.
    No. 15074.
    Court of Appeal of Louisiana. Orleans.
    Jan. 13, 1936.
    Plerman L. Midlo, of New Orleans, for appellant.
    Leo W. McCune, of Gretna, for appellee.
   JANVIER, Judge.

The National Manufacture & Stores Corporation, on October 12, 1931, sold to W. P. Mollenkoph, residing in the parish- of Jefferson in this state, certain furniture for the price and sum of $300. Defendant paid $155 on the furniture and then refused to make further payments, claiming that Ihe bedroom set purchased for $145 was not the same set which had been selected by his wife and himself. Plaintiff thereafter filed this suit claiming the balance alleged to be due; in other words, the exact purchase price of the bedroom set. The furniture was seized under a writ of sequestration, but the defendant filed a forthcoming bond and obtained possession of it.

The contention of the defendant is that he and his wife selected a bedroom set which had been exhibited in the store of plaintiff as a floor sample and that, when it was delivered at his residence, it was discovered that it was not the set which had been selected, but was a secondhand set. The evidence is contradictory, but we believe that it establishes clearly that the bedroom set delivered was the same set which had been selected by plaintiff and his wife. The district court held that another set had been substituted; but, after a review of the evidence, we think that this finding was clearly incorrect. We have taken into consideration the attitude of defendant which seems to be a contention that he has a right to retain the furniture, although he has paid nothing whatever on the purchase price thereof.

The minor defects which are shown to have been discovered in the set some months after its delivery are of no great importance and, according to the evidence of plaintiff, could have been repaired but for the objections of defendant’s wife.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff and against defendant in the full sum of $145, with legal interest from judicial demand and with recognition of petitioner’s lien and privilege upon the furniture in question.

Reversed.  