I differ with the majority of the court as to the proper determination of this case. The plaintiff, a negro woman, bought from defendant furniture valued at $95, payable on the installment plan. She paid on it until the balance due was $3.40.
Then not being able, or neglecting or failing for some time, to pay this small balance of $3.40, defendant's collector went out with his wagon and helpers, and, in her absence, claiming that they had her consent by means of a message received from plaintiff, through her little daughter at the house, they loaded her furniture in the wagon and took it to defendant's warehouse, where it is held against her. Defendant now has the furniture and the $91.60 paid on it and judgment against plaintiff for the balance due, $3.40.
Defendant supports its defense by the testimony of its agents and employees. After reading the testimony, I am unable to agree that the defense should prevail. I cannot believe that plaintiff freely consented within the meaning of the Civil Code, art. 1819, to what had been done.
I think the judgment appealed from should be reversed and judgment rendered in favor of the plaintiff for an amount proper to the loss sustained.
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