
    No. 4692.
    Court of Appeal, Parish of Orleans.
    A. L. PRAEGER VS. MORGAN’S LOUISIANA & TEXAS R. R. & S. S. CO.
    1. Issues of fact only are involved herein.
    2. The clerical error in entering the judgment below compels a recasting of such judgment.
    Appeal from the Civil District Court, Division “D.”
    P. P. Tessier, for Plaintiff and Appellant.
    Denegre & Blair and Leovy, Sansum, for Defendant and Appellee.
   DUPOUR, J.

When this cause was first filed before us (No. 4419 of our docket) we remanded it to malee tlie war-rantor a party ánd Reid that the carrier would be responsible for th'e contract price of sale, should it happen that the war-rantor did hot Successfully contest jhaiiitiff’s claim against defendant.

April 19, 1909.

Rehearing refused April 30, 1909.

The evidence on the Second trial convinces us that the 'warrantor’s act in taking the machine, having it repaired without plaintiff’s authority and keeping it, amount to such an acceptance as precludes subsequent repudiation of the contract on his part.

The defendant is liable to plaintiff for giving up the machine without presentment of the draft ánd bill of ldding by the party notified, and the warrantor is Correspondingly indebted to the carrier for receiving the automobile without paying the draft.

He cannot keep the machine and refuse to pay theprice.

The carrier’s neglect made the warrantor’s ratification possible and binds the carrier for the contract price.

Á clerical error in drafting the judgment of the District Court makes it necessary to, recast the' same.

Judgment reversed, and it is now ordered that there be judgment in favor of A. L. Praeger and against the. defendant, Morgan’s Louisiana and Texas Railroad and Steamship Co, in the sum of one hundred- and fifty dollars ($150), with legal interest from judicial demand and all costs of suit.

It is further ordered that there be judgment in favor of Morgan’s Louisiana and Texas Railroad and Steamship Co. and against Dr. G-. C. Smith, warrantor, for the sum of one hundred and fifty dollars ($150.00) with legal interest from judicial demand and all costs of suit. . -

It is further ordered; adjhdged and decreed that there be judgment in favor of A. L. Praeger and against the warrantor, dismissing his reconventional demand, without prejudice to his right, if any, to claim the value of the repairs, the Costs of appeal to be paid by defendant subject to reimbursement of same by warrantor.  