Opinion
No. 21337.
February 15, 1960.
APPEAL FROM FIRST CITY COURT OF NEW ORLEANS, SECTION A, NO. 35433, STATE OF LOUISIANA, HONORABLE ANNA JUDGE VETERS LEVY, J.
William M. Barnett, New Orleans, for plaintiff-appellant.
Robert J. Donovan, New Orleans, for defendants-appellees.
Consolidated Companies, Inc., doing business as Goodman Beer, brought this suit for the purchase price of wholesale groceries alleged to have been delivered on open account to the defendant, Mary Pollard, doing business as Pollard's Food Store, claiming $210.56.
The defendant answered, denying that she had ever received the groceries, and, in the alternative, averring that if she had received them, she had paid for them.
The plaintiff corporation produced as witnesses the driver of the delivery truck who testified that positively he had delivered the groceries as alleged. It also produced the salesman who took the order and the shipping clerk who supervised the loading of the truck.
The record convinces us that, through oversight, the truck driver who delivered the groceries failed to obtain the signature of the defendant showing the delivery of the goods, and that she is merely seeking to take advantage of this oversight on his part. The truck driver stated positively that he had delivered them and that he remembered very well that when the groceries were unloaded several articles were not wanted by the defendant and that he had to unpile some of the articles in order to get to those at the bottom which were to be returned.
The record shows that this driver had no reason to call at defendant's store on that day except to make this delivery and yet when he returned to plaintiff's place of business on that day, he produced cash or checks totaling $196.88 which defendant had handed him in payment of previous purchases.
All in all, as already stated, the record leaves no doubt whatever that the merchandise was delivered and that the amount sued for is due.
In the lower court there was judgment in favor of plaintiff for $4.04 for articles which defendant admitted she had received. Since the total amount sued for is due, the judgment must be amended.
Accordingly, the judgment appealed from is amended by the increase of the amount awarded to $210.56, with legal interest from judicial demand, and for all costs. As thus amended the judgment is affirmed.
Amended and affirmed.