
    BROWN’S VELVET DAIRY PRODUCTS, INC. v. J AND H FOOD SERVICE, INC.
    No. 21376.
    Court of Appeal of Louisiana. Orleans.
    April 11, 1960.
    On Rehearing Oct. 24, 1960.
    Chaffe, McCall, Phillips, Burke & Hopkins and William E. Crawford, New Orleans, for defendant-appellant.
    Cuyler H. Coulon, New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

The plaintiff corporation, a wholesale dealer in milk and other dairy products, brought this suit, praying for a judgment in the sum of $520, representing the balance alleged to be due on open account for “goods purchased by defendant corporation between August 2, 1957 and January 29, 1958.” Attached to the petition and filed with it is a sworn statement of account between plaintiff and defendant.

Defendant filed answer categorically denying each of the three articles of the petition. While it is not definitely shown in the record, it is indicated that, because of the filing of a general denial in a suit on an open account, defendant was not permitted to introduce evidence and there was judgment in favor of plaintiff and against defendant as prayed for.

A new trial was granted defendant, and there was then filed an answer in which defendant admitted that it had purchased certain quantities of milk for which it averred that it had paid in full the sum of $2,483.

Defendant then alleged that the balance of $520 claimed to be due for “goods” sold and delivered, in fact, represented a “charge for fifty-two milk cans arbitrarily priced at $10 per can.” Defendant denied that it had agreed to purchase cans and averred that it had “returned all milk cans conspicuously tagged with defendant’s name, to the same point to which plaintiff delivered them and from which point plaintiff agreed to recover said cans.”

After a second trial there was judgment for plaintiff as prayed for, and defendant has appealed suspensively.

The record, and particularly certain statements of account of plaintiff which were sent to defendant and which were introduced by defendant, make clear the method which was adopted by plaintiff in carrying out its contract to deliver milk to defendant and to which method defendant, during the five months involved, apparently made no objection.

The defendant, J and H Food Service, Inc., was employed by an oil drilling corporation, which is in no way involved in this controversy, to furnish the necessary food for the employees of the drilling corporation which was engaged in drilling oil for the production of petroleum products on a drilling “rig” in the Gulf of Mexico which could be reached only by boats and which boats operated between the drilling rig in the Gulf and a settlement known as Empire, in the Parish of Plaquemines. In transporting the necessary mechanical and other articles required, the drilling corporation employed still another concern which operated a motor barge known as “Mister Arthur”. The operator of this barge is in no way involved in this litigation.

The milk needed by the defendant was delivered by the plaintiff in five-gallon cans to this barge and by the barge was transported from Empire to the drilling rig. The empty cans were taken back by the barge to Empire

It very obviously was the custom established by the plaintiff that it would charge the defendant the current price for milk and would also charge against each delivery $10 for each can and that, on the return of each can, it would give to the defendant credit for the arbitrarily fixed value on the can. In other words, as each five-gallon can of milk was delivered, there would be a charge of the current price for the milk and $10 for the can.

According to the documents to which we have referred, the charge for each delivery of five-gallons of milk would then be paid for by check for the value of the milk and the return of the can. That this was the established custom is made very clear and, as stated, there is nothing to show that there was any objection to this custom until the parties came to a parting of the ways, at which time, according to the records of plaintiff, there were 52 five-gallon cans which had not been returned to it. It is not shown that each can was in fact worth $10, but it is shown that some were in better condition than others and that some were worth more than $10 and some less, and we think that, from the fact that no objection was made, it was established that $10 did represent a fair average charge for each can.

Thus, though the petition of the plaintiff presented a claim on an open account for milk and cans sold, the answer of defendant admitted everything claimed except that it averred that it had not agreed to pay $10 for each can. Defendant also averred that it had returned all cans “to the same point * * * from which plaintiff agreed to recover said cans,” When defendant did not deny that the cans had been received and averred that it had returned all cans to the plaintiff, it took upon itself the burden of establishing this fact and it has not successfully borne that burden.

It is true that the defendant produced two witnesses for the purpose of showing that all of the cans had been returned to the plaintiff. One of these witnesses, Clarence Montecino, testified that he was a “flunkey” on the drilling barge and that, as soon as each can was emptied, a tag was put on it and that it was put on the platform to be returned to Empire. He had no knowledge at all as to whether the cans were actually taken back to Empire, nor to what was actually done with them if they were taken to Empire. The other witness who testified concerning the return of the cans was Mr. Harvey B. Elder, Jr., who was a “stockholder,, secretary-treasurer, general manager” of the defendant corporation. He was asked whether to his knowledge all the cans delivered to the defendant were returned to Empire, and he answered: “To my knowledge they were.” He stated, however, that he had no receipts for any of them, and a careful reading of his testimony indicates that all he meant to say was that he had no reason to believe that any of the cans had not been returned.

We repeat that the evidence fails to show that the cans were returned to the plaintiff corporation.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.

On Rehearing

McBRIPE, Judge.

In our original opinion we stated:

“ * * * the answer of defendant admitted everything claimed except that it averred that it had not agreed to pay $10 for each can. Defendant also averred that it had returned all cans 'to the same point * * * from which point plaintiff agreed to recover said cans.’ * * *”

We then reasoned that:

“ * * * When defendant did not deny that the cans had been received and averred that it had returned all cans to the plaintiff, it took upon itself the burden of establishing this fact and it has not successfully borne that burden.”

A rehearing was granted when it was called to our attention in the application therefor that we had inadvertently overlooked the fact that the admission alluded to was contained in the supplemental and amended answer filed by defendant which was stricken from the pleadings on order of the trial judge upon plaintiff’s motion to strike, on the ground the supplemental and amended answer sought to change the issues raised by the original answer.

The rejection thereof by the trial court placed the pleading beyond consideration by this court and we confess error in holding that the contents thereof were binding on defendant. The law is to the effect that the appellate court will not consider a pleading, or part thereof, or ruling relating thereto, where such pleading or part thereof has been stricken. 5 C.J.S. Appeal & Error, § 1482, p. 762; Boudreaux v. Moon Oil Co., Inc., La.App., 158 So. 672.

The only pleadings before the court are the plaintiff’s petition praying for a judgment on the alleged open account and defendant’s answer which- categorically denies the three articles of the petition. Though sketchy and unsatisfactory, the evidence received at the trial and retrial in the lower court suffices to show that over a period of time plaintiff sold certain milk unto defendant and that the milk was delivered in five-gallon cans; the itemized statement annexed to and made part of the petition shows the charge for each delivery of milk, plus a charge for the cans which were priced at $10 each. There is no doubt defendant paid for the milk as is evidenced by the credits shown on the statement, and the “goods” plaintiff claims are not paid for consist only of the cans which plaintiff contends defendant was obligated to return to it. The plaintiff contends that the cans were to be returned to plaintiff by the defendant but that none of the cans were ever returned.

However, we cannot resolve the issue presented for decision from the record in its present shape; for instance, there was no showing there was any agreement or understanding between the parties to the effect defendant was obligated to make return of the milk cans, or if it was to be liable for the price of the cans if it failed to make the return, or what was the price of each can. We know that the cans containing the milk sold to defendant were delivered to the barge “Mr. Arthur” for transportation to defendant, but there is no evidence at all touching on the manner in which defendant was to return the containers to plaintiff if there was an obligation ■on its part to do so.

This case was tried twice below and was argued on two occasions before us, and under these circumstances we think rather than nonsuit plaintiff, we deem it proper and equitable to remand the matter to the trial court for the purpose of hearing further evidence which when considered along with the evidence presently in the record will enable a determination of the issue existing between the parties. We conceive it to be the law that an appellate court should not hesitate to remand a case whenever the ends of justice would be sub-served thereby, and we think this is just such a case.

It is ordered, adjudged and decreed that our former decree is set aside and recalled and that the judgment appealed from be reversed; and it is ordered that this cause he remanded to the lower court to be proceeded with according to law consistent with the views hereinabove expressed; and the trial judge is directed to render a judgment based on the evidence now in the record and on such further evidence as the parties choose to introduce; plaintiff is cast for the costs of this appeal and all other costs are to await the final determination of the case.

Former decree set aside; reversed and remanded.  