The opinion of tlie Coart was delivered by
Pochis, J.Plaintiffs seek to subject to their vendor’s privilege, three
sugar-house boilers and accompanying outfit which they sold and delivered to the defendant, Mrs. Legaré, on a plantation which was subsequently purchased from her at a private sale, by the defendant, G-od-chaux.
The cause was before us last year, and it was then remanded to the lower court for the purpose of taking testimony to show the place where the contract was entered into or completed. 34 A. 923.
After trial under that order, the district court found that the contract had been made and executed in the State of Ohio, and held that under the common law, which prevails in that State, plaintiffs had no privilege on the boilers. It, therefore, rejected plaintiffs’ claim for a privilege, and they appeal.
The sole question presented involves the discussion of the exact place at which the contract was completed.
The negotiations between the plaintiffs, who are boiler makers in Cincinnati, Ohio, and the defendant, Mrs. Lagaró, who was at that time a planter, and a resident of the parish of Ascension, in this State, were carried on exclusively by correspondence.
Their letters show that the boilers were to be made to Mrs. Lagaré’s order, and to be delivered to her on a steamboat at Cincinnati, where *361they were to be paid for on delivery, one-half cash, and the other half by her note, payable in December following.
Had the correspondence ceased at that point, and had the contract been closed and executed under those stipulations, the controversy would undoubtedly fall under the laws of Ohio, and the case would be with the defendant, Godchairx.
But the record shows that in her letter of May 27, 1877, Mrs. Legaré in ordering the boilers under plaintiffs’ conditions, refers them for the cash installment to her merchant or agent, L. Godcliaux, of New Orleans, and requests them to write to the latter so as to arrange preliminaries for the payment in question. Conforming to her desires plaintiffs wrote to Godehaux, under date of June 1, 1877, in the following words:
“We have contracted with S. Cecil Legaré” (Mrs. Legaré’s attorney-in-fact ) “for the construction of three boilers, drums and fixtures, for the Souvenir Plantation. He asks us to advise you of same, and directing to draw on you for one-half amount ( $1075 ) when outfit is shipped. We expect to have all complete and ready in. about three weeks.”
This notice was answered by Godehaux on June 4, ás follows:
“Your favor of 1st inst. came duly to hand. We will pay your drafts ($1075) for one-half of Dr. S. C. Legaré’s contract with you, against Dr. Legare’s receipt of the boilers, etc., in good order and satisfactory.”
It is too plain for argument, that the terms of this letter, if accepted by the contracting parties, operated a most material modification of the original contract which the latter had contemplated.
The evidence in the record shows to our entire satisfaction that the conditions therein contained, were accepted by both parties.
True, the plaintiffs made no answer to the new proposition, but they acted under it, and hence they gave an implied but unmistakeable assent thereto. 0. C. 1811.
Without the assistance of her merchant, Mrs. Legaré was powerless to comply with the stipulation of a cash payment of the boilers on delivery. Hence she referred plaintiffs to him for his consent to advance the necessary funds, and in giving his assent, he dictated his own terms, which practically altered and essentially modified the contract, which would have been entirely abrogated without his concurrence.
Under the original stipulations, the boilers were to be delivered and paid for in Cincinnati, and would thus have become the property of Mrs. Legaré before leaving that city. Under Godchaux’s stipulations they remained plaintiffs’ property until delivered to and accepted by *362Mrs. Legaré, or her agent on her plantation. Had the boilers on inspection been, found not to be of the prescribed dimensions, or of the required quality of material and workmanship, the delivery and the contract would not have been completed, and the payment would have been withheld. Otherwise, if the boilers had been considered as delivered by shipment at Cincinnati, in accordance with the original stipulations.
The terms required by Godchaux were brought to the notice of Mrs. Legaré, who, of course, acceded thereto.
Her assent is shown by her subsequent correspondence and by a formal notice which she gave to plaintiffs, on the day that the boilers were received on her plantation, at which time only, and not before, she authorized the latter to draw' on Godchaux for the cash payment.
The acceptance of those terms by the plaintiffs is shown by the fact of their shipping the biylers without exacting the previously stipulated cash payment, and by the, additional fact of not drawing for the same before receipt of the notice which was sent to them by Mrs. Legaré, on the 30th of August, 1877. The boilers had been shipped as far back as the 14th July — the delay of delivery having been caused by the-sinking of the boat on which they had been shipped.
Had they been lost in transitu, the loss would, beyond a doubt, have been that of plaintiffs, under the contract as modified by the terms imposed by Godchaux, himself. Such was the very object of the stipulations contained in his letter to plaintiffs. He cannot, now, escape the consquences of his own acts in the premises.
The direct and immediate effect of the modification of the contract, made it only executory and subjects it to the laws of Louisiana, governing such contracts. The new stipulations, emanating from Godchaux and accepted by all parties, engrafted a suspensive condition in the contract, under which it could not be executed before delivery of the things sold, in this State. Hence the conclusion that it thus became a Louisiana contract, and that its enforcement must be tested under the laws of this State. C. C. 2043, 2044, 2471; Beirne & Burnside vs. Patton, 17 La. 589; Overend Gurney & Co. vs. Robinson, 10 A. 728; Maillard vs. Nihoul, 21 A. 412; Duncan vs. Helm, 22 A. 418; Chaffe & Sons vs. Heyner, 31 A. 599; Benjamin on Sales, sections 308, 319, 651.
We have given due consideration to the authorities invoked by defendant’s counsel in support of his proqiosition that this contract must be construed under the laws of Ohio, but the decisions which ho lias quoted present cases of purchases made by residents of this State, in *363other States of the Union and in foreign countries, and they present contracts which contained no stipulations of a suspensive condition, contracts in which the purchasers had not even received the right of inspection of the articles bought by them. Whiston vs. Stodder, 8 M. 134; Colt vs. O’Callaghan, 2 A. 984; Brent vs. Strouse, 16 A. 158; Loeb vs. Blum, 25 A. 232.
Under the circumstances of this case, we conclude that the contract could be executed in Louisiana only, and that plaintiffs are, therefore, entitled to the protection of our laws on the question of privileges on movable's.
It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now decreed that a privilege be recognized in favor of plaintiffs, on the boilers, drums and fixtures sold and delivered by them to Mrs. Legaré, on the Souvenir plantation in the parish of Ascension, to secure the sum of one thousand and seventy-five dollars,, with interest of eight per cent per anmim, from January 5, 1878, until paid, together with the costs of this appeal, the costs incurred in the lower court in the present case, and one-half of the costs incurred in the first or previous trial below of this case.