DISSENTING OPINION.
x. The written 'contract in this case provides for delivery at plaintiff’s stave-yards in New Orleans.
2. Under Art. 1920 R. C. C. the vendor in possession could transfer the ownership to a third person under a contract made in good faith by said third eprsons without notice of the first contract.
DUFOUR, J.We concur with the conclusion of fact of the District judge so far as the shipment to Kastor is concerned; we may net set aside the positive testimony of Benchina and Kastor on vague suggestions of inferential fraud.
As to the cthe rear loads, I do not think that the testimony *428shows that all of the staves came from the lot manufactured by Taubenblatt for Daniels.
The evidence in behalf of the latter is to the effect that a number of the staves bore Daniel’s brand, a “D,” in a circle with a Maltese cross, and, that others had been sawed or painted, so as to obliterate the brand. The -witnesses, however, oculd only remotely approximate the number of the, staves alleged to have been tampered with.
Taubenblatt, upon being asked if he shipped the staves to Xiques & Co., says:
“Yes, first to Daniels an dthey were there where the car was standing and where the staves were piled, and there were two cars belonging to Xiques, Lemore & Co. and my man asked me if he could put two piles from the Xiques staves in the Daniels car and I said yes, and after a while he should take from Daniel’s staves and return the same to Xiques, Lemore & Co.”
It cannot be presumed with any degree of justification that the presence in the shipment of a number of Daniel’s branded staves necessarily means that the whole shipment came from his lot.
But, even if the contrary be assumed, the plaintiff’s case fails. Under the written contract between Daniels and Taubenblatt, the staves became the property of Daniels as soon as he had paid for them in full. As the evidence shows that such payment in full had been made, the sale was perfect as between the vendor and the vendee.
But, the contract further provides that the staves were to be “all delivered f. o. b. cars at the stave-yards” of Daniels’.
Under Art. 1922 R. C. C., the vendor in possession could transfer the ownership to a third person under a contract made in good faith by said third eprson without notice of the first contract.
This is what 'Occurred in this case and the record clearly shows that the intervenors obtained possession of this shipment in good faith and for value received.
It is admitted that intervenors hold at his disposal the staves bearing the trade mark of Daniels, which were found in the car consigned to them.
*429June 21, 1907. Rehearing refused June 29, 1907. Writ granted by Supreme Court, Aug. 3, 1907. Nov. 4, 1907, decision Supreme Court, amending and affirming judgment.I am of the opinion that Daniels can recover only the staves which bear his brand, and therefore dissent.