*647On Rehearing
FOURNET, Chief Justice.We granted a rehearing in this case on plaintiff’s application1 to reexamine the record in order to ascertain whether he is entitled to recover (a) for certain sand, red clay gravel and washed gravel allegedly furnished under his agreement with the defendant, T. L. James & Co., Inc., and (b) for taxes due the State on such sales.
As observed in our original opinion, the contract for the sale and delivery of these materials was, in the beginning, an oral one, but was subsequently reduced to writing in order to accommodate plaintiff in obtaining bank credit. According to the terms of two similar written instruments,2 executed in March of 1956 (one for delivery of the material to Plaquemine or White Castle, the other for delivery to Berwick, La.), the plaintiff agreed to sell to defendant and the latter agreed to purchase stated approximate quantities of red clay gravel, washed gravel, and washed sand, at a fixed price per cubic yard for each material, for which defendant agreed to pay “within 30 days of delivery.” Plaintiff was to deliver the material by barge and unload it, at his cost, on locations at the water’s edge designated by defendant. The written contracts, which were merely a continuation of the oral agreement, contained no stipulation evidencing the intention of the parties as to the manner in which this material was to be measured, but when deliveries were first begun in September, 1955, the pattern was established by measuring the capacity of the trucks into which the material was loaded at the pit; 3 thereafter, upon each truckload being driven to a nearby location on the river bank at St. Francisville and dumped on a stockpile (for convenience in loading on the barges), each truck driver was given a ticket bearing the date and his truck number (a duplicate thereof was retained by the “checker”), and upon surrendering their tickets the drivers were paid for their labor. The tickets were then used — each representing five cubic yards of whatever material had been hauled — in billing the defendant, were attached to plaintiff’s invoices, and sent to the field office nearest the highway project to which the material was then being delivered.4 *649The joh superintendent received the material, he and the office manager approved the invoices and made requisition for payment to the main office in Ruston. Accounts were handled in this fashion for a period of some eight or nine months; plaintiff then informed the defendant that he could no longer obtain gravel to meet the State’s specifications for highway material. All of the invoices up to that time had been paid in full, leaving unpaid only those of June 25, July 2, 7, 10, 14 and 21, in total amount of $20,702.40.
The reason given by defendant for not paying the last invoices is that at that time it realized it had paid plaintiff for more material than had been used in the road construction job, as indicated by Highway Department’s measurement of material received from the defendant. According to the version of defendant’s General Superintendent, George Williams (the man who made the agreement), the defendant was to pay plaintiff on the invoices as submitted, but such payment was made subject to verification based on the Highway Department’s actual measurement of material used on the job, and the agreement was to be modified and corrected accordingly; and when notified by plaintiff that he could no longer supply material, that is when defendant stopped paying him. Plaintiff, on the other hand, claims that he was paid strictly in accordance with their agreement, and denies there was to be any subsequent modification or adjustment.
In order to determine which is correct, we have again examined the entire record. While the testimony is most difficult to follow, lacks continuity and clarity, is inconclusive, contradictory in many instances and confusing in others, from a perusal of the testimony and exhibits we think that the evidence preponderates in favor of the plaintiff’s contention.
This conclusion is corroborated by the fact that from the very beginning and at intervals throughout the operation the defendant constantly caused checks to be made at St. Francisville to see that full measurement was being maintained, and is consonant with the expressed provision of the contract that payment would be made “within thirty days of delivery,” and the further fact that the system of measurement relied on in this case, i. e., use of “five-yard” trucks and the issuance of tickets on each truckload was, as found by the trial judge, admittedly the method “in general use by those in the gravel business in determining the amount of gravel handled.” While the record is not clear as to when the trucks were first measured for their capacity, or by whom, it is replete with instances where the defendant had spot checks made of the trucks on the job. The first man employed for checking purposes, Frank Russo, testified *651that for the first five-months of the operation he checked gravel for the defendant, saw that the trucks were loaded to proper capacity, caused the material to he dumped in stockpiles of one or two thousand cubic yards, supervised the loading on barges and saw that the stockpiles were well cleaned off; thereafter the checkers of the trucks were spot-checked from time to time by disinterested persons who were sent by the defendant. For example, during the first part of April, 1956, at the request of defendant George Williams, Johnson ’ Barrow (engaged in private business elsewhere) went to St. Francisville, measured the trucks then in use and gave each driver written dimensions of the truck he was driving;5 on the 24th of April he returned, again for the purpose of measuring trucks (but no hauling was being done). The next check was made a few weeks later by ■T. D. Enete, who conducted his own business in St. Francisville and who testified that he was asked specifically to investigate, check and report to defendant. Stating that his checking was done as though he were actually buying the gravel for Mr. ‘ Williams a'nd that his investigation covered a period of several days, a total of forty working hours — during which time he measured the capacity of the trucks with a slide rule, made sure they carried full loads before being unloaded in stock piles of 1,000 cu. yds., saw that the barges were properly loaded and that no material was left on the' ground, and he reported accordingly.6
That the plaintiff was supposed to deliver the material at the plant site in quantities of 2,000 cu. yds. on two barges each shipment cannot be disputed by the defendant, for its own witness, Buford Saxon, plant foreman of the asphalt plant at White Castle, reported to W. M. McGee, his immediate superior, that although defendant was supposed to be getting 2,000 cu. yds. of material on two barges each shipment, the barges were arriving far short. Thereupon McGee, having received orders to see that the material they were being billed for was actually received, caused a special bin or hopper to be constructed at the un*653loading site on the levee near White Castle, at a cost to defendant of $1,195; from the barge, the material was unloaded by drag-line directly into the bin and flowed through into a five cu. yd. truck underneath; thus, a count of the truckloads showed the amount received. While this witness said that six bargeloads of material were were checked in this fashion— two of which were “short” barges, plaintiff having advised that due to plant trouble he had not been able to load fully and was sending the barges as they were, two others carried about 1,650 cu. yds., and two came in with 1,955 cu. yds. — he does not relate the measurements to any date or to any particular shipments, stating only that the records were in the office of the defendant. This testimony was taken by deposition, and so far as we have been able to find, the records to which the witness referred were neither identified nor produced in evidence. We note, however, that McGee stated he went to White Castle in mid-February, 1956, that the bin was constructed after his arrival, that the measurements were made of material brought on the two large barges on which plaintiff was shipping washed gravel; and we find, on plaintiff’s Exhibit A attached to the petition, that on April 12, 1956, a shipment of washed gravel was made to White Castle, the charge being for 1,655 cu. yds.
Other than this, apparently no sustained attempt was made to measure the material delivered by dragline from the barges. At the defendant’s request representatives of Pittsburg Testing Laboratory on two occasions measured barges, once at White Castle on March 22 and the other time at Calumet on June 28, 1956. ' The report of the first measurement, introduced as Exhibit D-12, is not in the record, and at its place is a notation by the Court Reporter, “This laboratory report is missing from the exhibits.” The report of the second measurement shows that a barge, the TJ 68, was checked at Calument slip and the load was calculated at 884 cu. yds. Evidently in connection with this measurement, defendant’s asphalt plant superintendent at Berwick called the plaintiff by phone, ad-' vising of their intention to measure the barge which had just arrived and asking if plaintiff wished to send a representative, to which plaintiff had replied, “Just go ahead and pay for what the measurement was.” It is noted that plaintiff’s invoice for shipment of that date is for exactly the amount of 884 cu. yds. And supporting plaintiff’s explanation that, due to an accident to a large barge, -toward the end of the operation smaller barges had to be used, is the fact that plaintiff’s invoices covering the last four shipments show that the defendant was billed for short measurements, i. e.,' 1,700 cu. yds., 1,700 cu. yds., 1,700 cu. yds., and 850 cu. yds. Another of defendant’s key .employees, Raymond Allen, a project superintendent who was *655on the job during the entire period, admitted that he never complained at any time that shortages occurred in the deliveries by barge.
Clearly there would have been no occasion for all of this checking unless for the purpose, as stated by McGee, to see that the defendant was getting all of the material for which it was being invoiced. George Williams’ version of the parties’ agreement — i. e., that payment for the material was made subject to verification and modification at the completion of two highway construction projects and was to be based on final measurement by the Highway Department, at which time plaintiff would re-invoice defendant for the additional yardage or replace any shortage that developed — is neither in keeping with the manner in which the whole transaction was conducted nor to any degree supported by the record. Moreover, it would not be compatible with the express provision of the contract requiring that the material be paid for within thirty days of delivery.
From this it follows that in as much as the defendant made no further measurement of the material, it must have been satisfied that the deliveries contained material in accordance with the invoices, which were being accepted and approved for payment. The method r.elied on by the defendant for computing the material received from the plaintiff was, we think, as did the trial judge, too complicated and uncertain, and presented a matter of too much speculation.7
The Articles of the Civil Code on which the defendant relies have no application; they deal with the obligation to restore, by one who receives what is not due (Article 2301), the right to reclaim that which has been paid through mistake (Article 2302), and the damages which can be recovered for delay in performance of an obligation to pay money (Article 1935). Nor is the case of Milliken & Farwell v. American Sugar Refining Co., 143 La. 667, 79 So. 214, 215, relied on by defendant as “on all fours” with the instant case, of any assistance. In that case the plaintiff-seller was denied recovery for sugar shipped' by barge and lost upon arrival at destination because there had been no compliance with the parties’ contract that the sugar was “to be sampled, weighed and *657tested, according to the usual custom, upon arrival;” and the Court rejected plaintiff’s contention that there had been acceptance of delivery because the loaded barge had been moved from wharfside and tied to the ship’s side (where the loss and damage occurred) at the suggestion of defendant’s superintendent. In the instant case delivery was made and accepted, there was no loss or damage; and while defendant had the right to measure in order to insure that it was receiving the quantities for which it was being billed, it cannot now, after having accepted and used the material, successfully claim there was a shortage when it failed to show actual measurement to prove such shortage. Under a long line of jurisprudence of this Court, defendant’s failure to produce the reports made by its superintendent McGee so as to show results of his measurement of particular barge-loads raises the presumption that the evidence, if produced, would have proved detrimental to its cause. Bates v. Blitz, 205 La. 536, 17 So.2d 816; Succession of Yeates, 213 La. 541, 35 So.2d 210, and numerous authorities cited therein.
We think the matter of plaintiff’s claim for sales taxes was properly disposed of in our original opinion.
For the reasons assigned, the judgment of the lower court, insofar as it rejected the demands of the plaintiff on his claim for certain red clay gravel, washed gravel and washed sand, delivered under his agreement with the defendant, and ordering that the costs be paid equally by the plaintiff and defendant, is annulled and set aside; and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Theodore H. Martin, Sr., and against the defendant, T. L. James & Co., Inc., for the full sum of Twenty Thousand Seven Hundred and Two and 40/100 ($20,702.40) Dollars, with legal interest from judicial demand, and for all costs; in all other respects the judgment appealed from is affirmed.
HAWTHORNE, J., dissents with written reasons.. The defendant did not ask for a rehearing; therefore the judgment as to its reconventional demand is final.
. These were signed by plaintiff and by George Williams on behalf of the defendant. Williams was defendant’s General Superintendent, and all transactions were conducted through him.
. These trucks, which belonged to various individuals and were driven by their eruployees, were in the main of five cubic yard capacity.
.The invoices were usually submitted in a form identical with or similar to the following : “2,000 yds Creek Gravel, $6,000; Tickets Nos. 10801 thru 11200” or “2,-000 cu. yds. Washed Gravel @ $3.00 yd., $6,000 ; 400 tickets @ 5 yds. each — 2,000 cu. yds.”
. The testimony of this witness indicates that five trucks were hauling on the day he made his measurements; of those he measured, one made only one trip, another had a five yard capacity, and “the other the bed was not five yards;” that none carried five yards of gravel; and that he made an average of the amounts hauled over two round trips which re- ' suited in a deficiency of “about thirteen point one per cent.” There is no showing that defendant was given a report of his findings, that it protested payment of an invoice during this period, or that the deficiency was of usual occurrence.
. The testimony of this witness was to the effect that the drivers were anxious to keep their loads to the required measurement, and while some truckloads were under five yards, others were over, so that one- measurement compensated. for the other — to within one yard in a thousand, according to his actual check and computation.
. In this connection the trial judge observed: “The defendant, itself, made and kept no measurement of the road material supplied to it by Mr. Martin. The method employed by the defendant in arriving at the amounts of the claimed shortages is simply to take the total figures supplied to it by the Department of Highways of materials used in the road project, and deduct the amount of materials bought from and supplied by a number of other suppliers, and then by a complicated system of allowances for moisture content, stockpile losses, recoveries from a cavein, it comes up with a figure which represents the amount of material supplied by Mr. Martin, and thereby determines his shortage. * * ”