
    NO. 7544
    NATIONAL BINDING MACHINE CO VS VINCENT S. DANTONI.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    
      May 1919.
   OPIHIOH.

By his Honor John St. Paul.

This is a suit for the prioe of certain "binding tape" sold d delivered by plaintiff to defendant.

The sole defense is that the tape was purchased for the pnrpoBe of advertising a certain brand of Olive Oil known by the trade name of "Italian Beauty", and for that purpose was to bear not only the printed name but also the ploture of an Italian girl in oharaoterlstlo costume and pose, according to a type furnished by defendant; but that plaintiff did not follow said type but on the contrary so far deviated therefrom that the printed picture reaebbles a Russian girl rather than an Italian, and therefore does not answer the special purpose for which said tape was purchased and of which plaintiff was well and particularly informed.

Passing by the question whether there be any substantial difference between the type furnished by defendant and the printed pioture on the tape (whloh is by ne means clear) the evidence established conclusively that before printing the tape, plaintiff furnished to defendant a sketch of the design which ^purposed to use, which sketoh was approved by defendant, and thereafter plaintiff made a "out" or stereotype of the very print itself as it would appear on said tape; of which it also furnished a proof or impression for defendant'8 inspection, which was again approved by defendant; ♦hereupon plaintiff then printed the tape and delivered it to defendant.

Under the oiroumstances it is clear that the eannot prevail. If defendant found the sketoh and proof unsatisfactory he should have said so before plaintiff proceeded with the printing of the tape; and having failed to do so then, he is estppfd from doing so now.

The judgment appealed from is therefore affirmed.

New Orleans La,  