DURRIVE ET AL. vs. FRERE, 11 La. 374

Martin, J., delivered the opinion of the court. The facts of this case are these: The plaintiffs are merchants, and partners; one of them came to the defendant’s plantation to purchase his crop of sugar, and was informed that he might have it at the price he offered, but was told that the defendant had before that time, given orders to his commission merchants, in New-Orleans, to dispose of it. On hearing afterwards that they had done so, the defendant declined delivering the sugar to the plaintiffs.

The present suit is brought, to recover in damages, the profits which the plaintiffs allege they would have made if the sugar had been delivered to them. They had a verdict and judgment, and appealed in order to obtain greater damages. where in a faots'^are^exí pressiy stated, quenees neees-them^sul implied and en-contract.

Where a.pian-ter sells his sugar crop on his oerte?n°npriced at the sa.m® the buyerP\iiat ^ ^Orleans híl™,. auíhority sell it, the con-b*conaderedas P"1,® ™<lef a.“ suspensive con-seller’ is^only agents have not time!” emean‘ Whatever in a have been ciear-i^^árties^fít bad heen^men-time, makes part-oflt- The defendant complains also, of the judgment, and prays that it may be reversed, and that judgment be given in his favor. . Our attention is first drawn to exceptions taken to the charge of the judge.

It is only necessary to consider that which relates to the part qf the charge instructing the jury to inquire, whether the defendant “ made the sale on condition, or in the belief that his agents had not made it then, nor should have made it before they heard from him ; and whether the person he contracted with so understood it; that if both these inquiries were answered in the affirmative, the contract was made under an implied or tacit suspensive condition, and the plaintiffs were not entitled to recover.” It does not appear to us that the judge erred, When in a contract certain facts are expressly stated, all the conse-quenees necessarily resulting from them are implied.

It, is stated m this contract, that the commission merchants had been directed to sell the defendant’s crop. One of the con- ... . sequences necessarily resulting from this fact was, that the crop might have been sold at the time the contract was made, or after and before the defendant’s commission merchants could hear from him. In either of which cases the defendant would have been bound to deliver the crop to the vendee of his agents in New-Orleans, and could not honestly deliver it to the plaintiffs.

The contract, therefore, was made under an implied or tacit suspensive condition, to wit: that no sale had been made by the defendant’s agents, which would prevent the delivery of the crop to the plaintiffs. Paley says, “whatever in a contract would have clearly been assented to by both parties, if it had been mentioned at the time, makes part of it.” If the defendant, therefore, had mentioned, that if the crop was sold in New-Orleans, the plaintiffs could not demand a delivery of it, they certainly would have assented to this modification of their contract.

The testimony establishes the fact, that the defendant distinctly informed the plaintiffs of the orders he had given to his agents, in New-Orleans, for the sale of his sugar crop ; and of the probability that a sale had been or might be effected by them. From this view of the case, we conclude, that the plaintiffs are not entitled to recover. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; the verdict set aside, and that there be judgment for the defendant with costs in both courts.