
    No. 10,170
    Orleans
    WILLIAMS RADIATOR CO. v. F. N. MILLER, Appellant
    (December 14, 1925, Opinion and Decree.)
    (January 4, 1926, Rehearing Refused.)
    
      (Syllabus by the Editor.)
    
    1. Louisiana Digest—Appeal—Par. 625, 630.
    The judgment of the trial court on questions of fact will be amended only ■ where clearly erroneous.
    Appeal irom the First City Court. Hon. W. Alexander Balms, Judge.
    This is a suit brought for the contract price of radiators.
    There was judgment for plaintiff as prayed for and defendant appealed.
    Judgment amended and affirmed.
    Emerson Bentley, of New Orleans, attorney for plaintiff, appellee.
    Geo. B. Eberle and E. A. O’Sullivan, of New Orleans, attorneys for defendant, appellant.
   WESTÉRFIELD, J.

Plaintiff agreed to deliver to and install in the home of defendant certain radiators which it guaranteed would properly heat defendant’s premises for the sum of $169.00. The radiators were delivered and installed but defendant refused to pay therefor upon the ground that the radiators would not heat his home as agreed. This suit is brought for the contract price of the radiators. There was judgment for plaintiff as prayed for and defendant has appealed.

We are convinced that plaintiff’s guarantee as to the efficiency of the radiators was not lived up to. Defendant made repeated efforts to have the plaintiff remedy whatever may have been the cause of the trouble without success. At one time it appears that plaintiff’s agent practically agreed with defendant to remove the radiators from plaintiff’s house but no agreement could be reached concerning the value of the pipe and connections which defendant desired to retain. Plaintiff asked $35.00 and defendant offered $5.00.

But defendant sold his house with the radiators in it and we think this fact influenced the judgment of the trial court. At the bar of this court in argument, counsel stated that his client was able to deliver the radiators should the court determine that plaintiff was not entitled to recover the contract price. We do not think plaintiff should recover the price of the radiators if they can be returned to him. As to the pipe the defendant according to the evidence has used it for another heater and must pay for it. Plaintiff fixed the value of the pipe . at $35.00 and we will allow that sum.

The judgment appealed from is amended so as to allow the defendant a credit of $134.00 provided he shall deliver to plaintiff the radiators for the purchase price of which this suit is brought within 30 days from the finality of this decree. Plaintiff to pay costs of appeal. In all other respects it is affirmed.  