WESTERN DIST. Where a merchant sells a sugar mill, which proves defective, after being September, 1834. received and put up by the purchaser, he is still entitled to recover the price, unless there was some concealed defect, or he had represented it as sound, when not so. BARCLAY A workman engages to furnish good work; but a merchant is not so bound. This is an action instituted by the plaintiff, residing in Louisville, Kentucky, to recover of the defendants, one thousand dollars, the price of a sugar mill, delivered at their sugar plantation, in Attakapas. He charges, that the price of said mill was one thousand dollars, and that he proposed to one of the defendants, if they were dissatisfied with it, he would take it back, which was refused; that they have since sold said mill, for the sum of twelve hundred dollars. He prays judgment for one thousand dollars, the price at which he sold it. The defendants admit, that in consequence of a previous contract, the plaintiff delivered a sugar mill at Franklin, in Attakapas, in the fall of 1829, which they had conveyed to their plantation, and put up, and managed by a skilful mechanic, for the purpose of grinding their crop of cane; that notwithstanding all their care and skill, when they began to grind, the mill broke in pieces, in consequence of the defective materials, and manner in which it was made; that they had to throw it away as worthless, and put up a wooden mill. In consequence of the lateness of the season, occasioned by the defective quality of the mill, purchased of the plaintiff, they estimate a loss in their crop of sugar, of four thousand dollars, which added to the mechanic's bill of four hundred dollars, and freight of forty more, makes a sum total of their losses, amounting to four thousand four hundred and forty dollars, for which, after rejecting his demand, they pray judgment against the plaintiff, in reconvention. The defendants, amending their answer, add the allegation of fraud, and charge the plaintiff with acting illegally and fraudulently, in knowingly selling them the defective sugar mill, in consequence of which, they sustained the damages claimed in the reconventional demand. BARCLAY 28. CONRAD ET ALS. The defendants took the depositions of several witnesses, WESTERN DIST. who testified to the breaking of the mill, after it was put up. September, 1834. Among these witnesses was the mechanic, who put up the mill. He states, it was the first horizontal mill he had ever put up, but thinks he understood his business well enough, to put the mill up in the right manner. The bevel wheel broke soon after they began to grind, and the defendants had to procure a wooden mill, to make up their crop. One witness estimates the loss of the defendants, to be half their crop, in consequence of the breaking of the mill. He also states, that they sold the broken mill for one thousand two hundred dollars. The plaintiff's testimony showed, there was great difficulty in putting up horizontal mills, by the best of workmen; that they all break more or less. The same evidence showed that the defendants sold this mill for one thousand two hundred dollars, after getting a new wheel. It was also shown, the plaintiff's regular business was that of a merchant, and vending machinery of this kind. The jury returned a verdict for the plaintiff, for the sum claimed. After an unsuccessful attempt to obtain a new trial, the defendants appealed. The district judge charged the jury on the trial, “that it was admitted, the defendants bought the mill, and must pay for it. If the mill broke from its being badly mounted, it was no fault of the plaintiff, and he is not responsible. If the mill be of bad quality, did plaintiff know it, and represent it as good? If he did, he is answerable for all damages sustained by the failure of the mill; if not, he is not responsible. That as to redhibition, the thing must be restored; if the purchaser has sold it he thereby affirms the contract and must pay for it. The law cited from Pothier, that a workman engages to furnish good work, does not apply; the plaintiff is a merchant, and is not so bound. Nor is there here any violation of contract, by plaintiff; he did not warrant the mill as sound, and unless it had some concealed defect, and he represented it as sound, he is not liable." To which charge the defendants' counsel excepted, as being BARCLAY WESTERN DIST. Contrary to law. He also required the judge to charge September, 1834. the jury, "that under the article 1928 of the La. Code, the plaintiff being bound, to warrant the soundness of the mill by him sold, he is liable for such damages as were contemplated at the time of the contract," &c., which the judge refused, and a bill of exceptions taken. V8. CONRAD ET ALS. Where the de This case was submitted to the court without argument, by Mr. Brownson for the plaintiff, and by Mr. Simon for the defendants. Martin J., delivered the opinion of the court. The plaintiff claims the price of a sugar mill, sold and delivered to the defendants. They admit the delivery, but charge the plaintiff with fraud, averring that he knew the mill was inartificially constructed, and made of so bad materials that it was absolutely worthless; and being put up by the defendants, immediately after they received it, several parts of fendants pur- it broke off, as soon as it was put in motion; that they were gar mill of the unable to make use of it, after they were at considerable plaintiff, who is expense and charges, in putting it up, and endeavoring of which broke to avail themselves of it. They further aver, that they in pieces on being put up, the sustained heavy losses, in consequence of the disappointment, latter is not re- and their inability to use it, and the consequent impossibility defects, unless of grinding their cane crop. chased a su a merchant, part sponsible for the he knew it was of bad quality There was a verdict and judgment for the plaintiff'; and the and represented defendants appealed, after an unsuccessful effort to obtain a it as good. The defend- new trial. ant cannot set up fects, to the it to another. rehibitory de- Our attention is drawn to the charge of the court, who told thing sold and the jury, "it was admitted that the defendants bought the purchased by mill, and consequently they must pay for it; that if the mill him, when sued for the price, af- broke, in consequence of being badly mounted, it was no ter having sold fault of the plaintiff, and he was not answerable. If the mill By selling it, he was of a bad quality, did the plaintiff know it, and represent contract. it as good? If he did, he is answerable for all the damages engages to fur- sustained by the failure of the mill. If he did not, he is not nish good work, responsible. As to redhibition, the thing must be restored. If the purchaser has sold it, he has affirmed the contract. affirms the first A workman but a merchant is not so bound. By the law cited from Pothier, a workman engages to furnish WESTERN Dist. good work; the plaintiff is a merchant, and is not so bound. September, 1834. Nor is there here any violation of contract, unless there had COON been some concealed defect, and the plaintiff had misrepre- BRASHEAR ET ALS sented it as sound." Where a merchant sells a su up by the purchaser, he is still It does not appear to us, that the charge of the court was gar mill which erroneous. On the merits, the evidence shows, that the mill proves defective after being rewas sold by the defendants, for one thousand two hundred ceived and put dollars, while they had bought it for one thousand dollars. The jury have been of opinion, that the defendants have not supported their defence. On an appeal to the judge, by a motion for a new trial, he has been of opinion, that they defect, or he had have not erred. entitled to re cover the price, unless there was some concealed represented it as sound when not Our best attention to the statement of facts, has led us so. to the conclusion, that it is not our duty to interfere. A workman engages to furnish good work; but a merchant is not It is, therefore, ordered, adjudged and decreed, that the so bound. judgment of the District Court be affirmed, with costs. COON VS. BRASHEAR ET ALS. APPEAL FROM THE COURT OF THE FIFTH JUDICIAL DISTRICT, THE JUDGE Prescription when once acquired, may be either tacitly or expressly renounced. When a party once voluntarily renounces prescription in his favor, in the course of the trial in the inferior court, he cannot renew it, or avail himself of it in the Supreme Court. The voluntary waiver of the plea of prescription, by a party in a judicial proceeding, especially when accompanied by a concession, on the part of his adversary, made in consequence thereof, is the strongest presumption of the renunciation of the right itself. WESTERN DIST. Where a workman sues to recover his wages, at a stipulated hire, per month, September, 1854. as a brick-layer, and evidence is introduced without objection, to prove the usual wages of that class of mechanics, the jury are the judges of the value of the work charged as having been done, on the evidence then before them. COOX 23. BRASHEAR ET ALS. In a suit to recover wages, at a stipulated hire per month, by a mechanic, it is sufficient for him to prove his contract, and the length of time he was in the defendant's employment. Where a witness swears falsely, on a material point, in a cause, the jury is authorised to disregard his testimony altogether. The jury are the judges, whether a misstatement by a witness was wilful, or material, and what degree of credit ought to be given to his testimony. The Supreme Court can judge only of the effect of the whole evidence of the case taken together, and whether the verdict of the jury is manifestly against, or without legal evidence. This is the principle uniformly adhered to, and when the verdict is not of this character, it will not be disturbed. The exception or plea, that no amicable demand was made, must be specially pleaded, and in limine litis. It is too late to put in the exception after contestatio litis. This is an action, for work and labor done as a mechanic, at a stipulated hire per month, in which the plaintiff claims from the defendants the sum of two thousand one hundred and twenty six dollars. He charges, that he made an agreement to work for the plaintiffs as a mechanic, at their sugar farm in Attakapas, at forty dollars per month, from the middle of February 1828, until the middle of July following; and that after that period, and up to the 7th of February, 1832, as an inducement for him to continue, the defendant raised his wages to forty-five dollars per month, until the whole amount of his wages amounted to two thousand one hundred and twenty-six dollars. He prays judgment for this sum, with legal interest from judicial demand. The defendant pleaded a general denial; admitted the plaintiff had been in the habit of working for him, more or less, in the period alleged, but not in the manner set forth in the petition. That at one time, he worked by the month and |