
    No. 5790.
    EDWARD W. SMITH ICE MACHINE CO. vs. DOMINICK J. TRANCHINA.
    Syllabus.
    Questions of fact only are involved.
    Appeal from the Civil District Court, Parish of Orleans, Division “B,’’ No. 97,936, Hon. F. D. King, Judge.
    Nix & Tichenor, for plaintiff and appellant.
    H. Moise, for defendant and appellee.
   His Honor,

EMILE GODCHAUX,

rendered the opinion and decree of the Court as follows:

Opinion and decree, April 21st, 1913.

Rehearing refused, May 19th, 1913.

Plaintiff appeals from a judgment dismissing its claim for the price of a refrigerating outfit which it sold to defendant for use in his restaurant; and the sole question involved is whether or not the apparatus installed is capable of maintaining the temperature required by the contract under which it was sold. The burden of proving that it does so comply is clearly upon plaintiff, for the contract specifically postpones the payment of the price until plaintiff has made a test and demonstrated the efficiency of the machine.

There is some testimony to the effect that the required temperature might be maintained for twenty-four hours by the constant operation of the plant during that entire period, but even on that subject there is a decided conflict in the testimony. Be that as it may, however, there is a total lack of evidence showing that such temperature could be maintained for that period by operating the apparatus for ten or twelve hours only — and that this was ,the degree of efficiency which the parties contemplated and the contract required should be attained, is demonstrated by the exhibits which plaintiff offered in evidence on its own behalf.

Furthermore it may be stated that defendant’s testimony is uncontradicted to the effect that the apparatus failed at all times to fulfill the known purpose for which it was purchased — namely, to properly preserve the meats, vegetables and other supplies necessary to the conduct of .the business in which defendant is engaged.

We find no error in the judgment and it is accordingly affirmed.

Judgment affirmed.

Dufour, J., takes no part.  