Jedediah Leeds v. A. V. Bredall and others, 2 Rob. 105

Morphy, J. The petitioner seeks to recover $2650 29, being the value of two pumps with their machinery and apparatus, as detailed in an account annexed to his petition.

The work was executed at the plaintiff’s foundry for Bredall, and his co-defendants, Godfrey Blossman & Co., engaged to pay for it in the following terms : “ Please let the bearer, Captain Bredall, have the two iron pumps spoken for, and we will hold ourselves responsible for the payment for them, when delivered. ■ “ Godfrey Blosshan & Co.” There is no dispute as to the manner in which the work was done, nor as to the amount demanded for it; but it is urged by Godfrey Blossman & Co., who alone have appealed from the judgment rendered below in favor of the plaintiff, that the two pumps were not delivered to Bredall, and that they cannot be made responsible until- such delivery takes place.

The evidenee shows that when the pumps were finished, they were examined by a person appointed by Captain Bredall, who then took away one half of the machinery ; and that the balance of the work has since remained at the foundry at the disposal of Bredall, who never called for it. The testimony further shows, that when the work had been approved of, and a part of it taken away, God-frey Blossman & Co. gave in part payment of it $1300.

Under such circumstances, it appears to us that Bredall’s neglect to take away the remainder of the machinery, cannot justify the refusal of Blossman & Co. to pay the balance of the plaintiff’s bill. The delivery has been effected as far as the plaintiff could make it. There being no place designated for this delivery, it was to be made at the foundry where the pumps were made, and where the plaintiff had his domicil. Civ. Code. art. 2163.

It must be considered to have been made as soon as the works were examined, found satisfactory, and put at the disposal of Bredall, who was to have removed them at his own expense. Civ. Code, arts. 2459, 2460, 2527. The judgment of the court below is, however, erroneous, inasmuch as it'allows to the plaintiff the whole amount of the account sued on, when the testimony shows that a sum of $1300 has been paid on it.

It is therefore ordered that the judgment of the District Court be reversed, and that the plaintiff recover of the defendants, God-frey Blossman & Co., the sum of $1350 29, with costs below; those of this appeal to be borne by the plaintiff and appellee.