On Rehearing.
LAND, J.The. judgment in the lower court was in favor of plaintiff and against the defendant for the sum of $3,399.23, with legal interest from date of judicial demand until paid and all costs, and rejected defendant’s reconventional demand.
Our former decree amended the judgment appealed from by ordering that there be judgment in favor of the plaintiff and against the defendant in the sum of $3,399.23, with interest from judicial demand, with costs of suit, and that there be judgment in favor of the defendant and against the plaintiff for $3,361.68, with interest from August 13, 1913, and for costs.
A rehearing was granted in this case on the application of the plaintiff.
The plaintiff, an Illinois company, doing business in the state of Louisiana, has instituted this suit against the defendant, a Louisiana corporation, with its legal domicile at Southport, Jefferson parish, to recover a balance of $3,399.23, alleged to be due on a sale by plaintiff to. defendant of 10 carloads of creosote oil.
Plaintiff alleges that this oil was to be shipped by it to defendant at Louisville, Miss., and that said oil was sold and shipped f. o. b. Southport, La., and that at the request of defendant the agent of plaintiff company made out bills of lading for the shipment of said oil, and that the same was forwarded to‘Louisville, Miss., where they were received and the freight charges were paid by the defendant.
Defendant denies that this oil was purchased f. o. b. Southport, La., as alleged, and says that the purchase and delivery was f. o. b. Ohalmette, La.
Defendant admits that 10 cars of creosote oil were forwarded to Louisville, Miss., and there received, but alleges that the freight charges were paid by defendant under protest. Defendant also denies that the bills of lading were made out by the agent of plaintiff at the request of defendant, and says that said bills of lading were from New Orleans, La., and not from Southport, as alleged by plaintiff.
Defendant pleads .the prescription of one and three years against plaintiff’s demands.
Defendant represents that it has had numerous and frequent dealings with plaintiff during several years prior to the instant transaction, and that during all of these dealings, creosote oil was purchased f. o. b. Ohalmette, La., or New Orleans, La., and invariably shipped over the New Orleans & Northeastern Railroad to defendant’s plant at Louisville, Miss., at a freight rate of 8 *201cents per hundred pounds; that the instant purchase was made f. o. b. Chalmette, La., a point convenient for direct shipment via the New Orleans & Northeastern Railroad according to custom; and that plaintiff at that time was erecting a plant at Southport, La., on ground owned by the Illinois Central Railroad Company, adjacent to said line, and was under obligation to make all shipments possible over said line; and that, for said reason, plaintiff desired to ship the creosote oil over said Illinois Central Railroad and requested of and obtained from defendant permission so to ship same on the representation and assurance to defendant as a condition precedent thereof that the freight would be the same to defendant’s plant at Louisville, Miss., as via the New Orleans & Northeastern Railroad, to wit, 8 cents per hundred pounds.
Defendant represents that said method of shipment was consented to and permitted by it .solely on the agreement by plaintiff that the freight rate would be 8 cents per hundred pounds; that said creosote oil arrived at Louisville, Miss., from August 11 to 13, both inclusive, 1913, and that defendant was presented with a bill for freight on same amounting to $4,002, and that defendant was compelled to pay, and did pay, same under protest in order to obtain possession of its creosote oil; that said freight bill was based on a rate of 50 cents per hundred pounds on 92,000 gallons of creosote oil; that the bill on the basis of 8 cents per hundred pounds, as represented by plaintiff, or if said shipment had been made via the New Orleans & Northeastern Railroad according to custom, would have been $640.32,'making a difference of $3,361.68, loss incurred by defendant by breach of plaintiff’s agreement; that said rate of 50 cents per hundred pounds was 42 cents in excess of the regular tariff rate via the New Orleans & Northeastern Railroad; that defendant would not have acceded to the request of plaintiff to divert to the Illinois Central Railroad if plaintiff had not made the representation to it that the rate would be the same over either railroad, and defendant has thereby suffered a loss by plaintiff’s actions and breach of agreement to the extent of $3,361.68, for which sum defendant prays for judgment against plaintiff in reeonvention.
[1] The prescription of one and three years pleaded by defendant were properly overruled by the lower judge, as the evidence shows that payments were made on the account within one year of the time of filing this suit.
Plaintiff has filed in this court a plea of prescription of one year against the reeon-ventional demand of the defendant. There is no necessity of passing on this plea.
[2] We find in the record a letter of date July 19, 1913, written by defendant to plain! tiff, confirming purchase made through Mr. Lynch, plaintiff’s representative, of remainder of creosote oil, “now in your storage tank at Southport of approximately 250,000 gallons, price $0.0655 per gallon at 100' P. delivered into our storage tanks, or into tank cars delivered our yard.”
In this letter it is stated:
“We [defendant] had an understanding with Mr. Lynch that ten cars of this oil were to be shipped direct to Louisville, Miss., the remainder to be delivered to us at New Orleans.”
This letter shows clearly that the oil purchased by defendant was in a storage tank at Southport, parish of Jefferson, and was to be shipped from that point direct to Louisville, Miss., yet defendant, in the face of this letter, denies in its answer that this oil was purchased f. o. b. Southport, La., and declares that the purchase and delivery was f. o. b. Chalmette, La.
That the bills of lading dated New Orleans, La., August 4, 5, 6, 1913, do not represent oil shipped from Chalmette, in the parish of St. Bernard, is established by the testimony of Lynch, Southern manager for the *203plaintiff. He states that in Inly, 1013, plaintiff company had no oil at Chalmette, and that they ceased doing business there in the early part of 1913. Defendant having confirmed sale of oil f. o. b. Southport, to be shipped direct to Louisville, Miss., is not in a position to claim a freight rate of 8 cents per hundred pounds on this oil, because the rate from Chalmette to Louisville, Miss., used to be 8 cents per hundred pounds, in former dealings between plaintiff and defendant.
There is nothing in the record to show what the rate was from Chalmette to Louisville, Miss., at the dates of these shipments of oil in August, 1913, and the record is barren of any evidence to prove that the rate from Southport to Louisville, Miss., via the Illinois Central Railroad was any different from that from Chalmette to the same destination via New Orleans & Northeastern Railroad, when these shipments were made, and for this reason defendant’s reconventional demand should be rejected.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by ordering that there be judgment in favor of plaintiff and against defendant in the stun of $3,399.23, with interest from judicial demand, and judgment as amended be affirmed, and there be judgment rejecting defendant’s reconventional demand.