G. A. GRAY CO. v. TAYLOR BROS. IRON-WORKS CO., Limited, et al., 66 F. 686

McCORMICK, Circuit Judge. We affirm the judgment of the circuit court in this case. The case hinges on the question whether the contract of sale of certain movable goods mentioned in the record was made under the law of Ohio, or under the law of Louisiana. Taylor Bros. Iron-Works Company, domiciled in New Orleans, La., placed with the appellant, (an Ohio corporation doing business in Cincinnati) an order for a planer. The correspondence between these parties shows their agreement as to the tiling to be manufactured and sold by appellant to Taylor Bros. Iron-Works Company, the price, and the time of payment.

The machine, as first ordered, was priced at $4,445. This was changed so as to add $90 to the cost, malting the price $4,535, one-fourth of which was to be paid cash on the day of the arrival of the machine in New Orleans, and the balance in six months from that date, with interest. On the 18th of April, 1892, the purchaser wrote the appellant to “push the work [of making the machine] to completion as soon as practicable, and forward by quickest route, making best rate you can for us.” On July 14th, appellant wrote the purchaser: “Your planer is done, and is being prepared for shipment.

Ordered in the car yesterday, and are in hopes of getting car out to-morrow evening. * * * Our superintendent will start just as soon as you wire us the machine has come.” On July 26th, appellant wrote purchaser: “Not hearing from you, we take it for granted that planer has arrived in New Orleans, and possibly our Mr. Erdman is with you. If so, you might hand Mr. Erdman the cash and notes in settlement for planer.” On July 29th the purchaser replied: “We have received the planer, and are now unloading same. Mr.

Erdman was over last night, but, as we will not have it on foundation before Saturday-evening, he went back, to return Saturday evening and spend Sunday with us.

It will be the middle of next week before we can run it, as the driving gear, comes on the outside, and we have to put up three counter shafts to reach it.” The purchaser placed the machine in position in the iron works, adjusted it to the other machinery and the motive power therein, ready for use, and then, on the 10th day of August, wired appellant, at Cincinnati, “Not a matter of choice, but necessity; cannot make cash payment now.” The appellant then wired Mr. Erdman to accept purchaser’s 60-day draft, with interest, in lieu of cash payment.

We are of opinion that this case does not come within the authority of McIlvaine v. Legare, 36 La. Ann. 359, or within any of the authorities cited for appellant. This contract of sale was made under the law of Ohio, the place of the domicile of the vendor. The sale was complete on the delivery of the finished machine to the carrier. The fact that appellant’s superintendent came to New Orleans to be present at the starting of the machine to work did not effect or show a suspension of the contract of sale.

There was nothing in the circumstances, the correspondence, or the conduct of any of the parties to show or effect a rescission of the sale made in Ohio, and the making of a new sale in Louisiana. The tiling, the subject of the sale, remained the same in substance and situation. The price was not changed. The purchaser could not make the cash payment, and the vendor accepted a 60-day draft, with interest, in lieu thereof. This does not express or imply a rescission of the sale already made under the law of Ohio, where the common law governs such contracts.

The purchaser did not pay appellant for the machine, it has been seized and sold at the suit of other creditors of the Taylor Bros. Iron-Works Company. Appellant’s contract being a common-law contract of sale of personal property, it cannot claim the vendor’s privilege given by the Civil Code of Louisiana. The judgment of the circuit court is affirmed.