Yarborough v. Bogalusa Steam Laundry, Inc. , 74 So. 2d 344 ( 1954 )

LlOTTIiNGER, Judge

(concurring).

Counsel for defendant Strug places great emphasis upon his contention that the plaintiff failed to allege and prove tender of the suit. In view of the stress laid upon this point, although I believe the opinion answers the contention, I think more of the facts relating to the question should be given.

In the petition of the plaintiff he alleged repeated amicable demand upon the defendants herein without avail and the answer of the defendant Morris Strug states that respondent admits plaintiff making amicable demand but respondent denies any liability in the premises for the reasons thereafter set forth in his answer. It appears from the facts, as established in the record, that after the plaintiff got the whole suit back from the laundry, that he conversed with both the laundry and the vendor back and forth for some time and it was after the laundry had gotten 'the letter which was introduced under Laundry 1, that the suit was turned over by the plaintiff to the vendor and it was then that the vendor sent the suit to the manufacturer and the manufacturer answered in accordance with the documents introduced under Strug 1, 2 and 3. Then the suit was returned to the plaintiff by the vendor with the instructions that he was not liable but that the whole trouble was attributable to the laundry and not to the manufacturer and that he denied any liability whatsoever and told plaintiff that he would try to sell the laundry a suit at wholesale so that plaintiff could be satisfied. Therefore, under these circumstances, it wasn’t necessary for the plaintiff to tender the suit to the vendor any more because it would have been a vain and useless jesture. For these reasons I respectfully concur.