H. & C. Newman vs. Clifton Cannon, Sheriff, et al.

No. 11,041. H. & C. Newman vs. Clifton Cannon, Sheriff, et al. When goods, on which a vendor’s privilege is claimed, have been sold in block and for a lumping price, and when the proof sustains the privilege on a part and fails to sustain it on the rest of the goods, the impossibility of separating the price is fatal to the allowance of the privilege. APPEAL from the Twelfth District Court for the Parish of Avoyelles-Cooo, J. Thorpe & Peterman for Plaintiffs and Appellees. Irion & Lafargue for Defendants and Appellants. [MAJORITY — Fenner, J.] The opinion of the court was delivered by Fenner, J. When this case was before us last year we remanded it in order to allow A. Lehman & Co. and other parties, claiming the vendor’s privilege upon certain goods, the opportunity,'by further evidence, “ to improve the certainty of their identification, and to separate the price of the goods properly identified from that of those which can not be identified.” A. Lehman & Co. undertook to do this, by further evidence, but failed to satisfy the judge a quo, who rendered judgment rejecting their privilege, from which they bring, the present appeal. The only additional evidence offered is that of the same witness, whose evidence was their main reliance on the former trial. He amplifies and strengthens his former evidence in some respects, but he does not overcome our conviction that a considerable portion of the goods claimed were not susceptible of identification, and that some of them had not even been sold by A. Lehman & Co. All the goods claimed and set aside by Lehman & Co. were sold in. block, and adjudicated to them at a lumping price. It is impossible to separate the price of the goods on which their privilege is established from that of those on which they have proved none. This is fatal to their claim, and sustains the judge’s ruling. Judgment affirmed.