Weld v. Donlin , 13 La. 460 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

This case turns exclusively on a question of fact. Tankersley & Dench sold to the plaintiffs sixteen bales of damaged cotton, on the 18th of November, 1837. Part of the price, two hundred and fifty dollars, was paid, and the cotton was delivered to the plaintiffs. The cotton, when sold, was at the yard of Messrs. Frerets, and was removed, by the plaintiffs’ order, to the pickery of Kelly. To these facts, we have the testimony of Dench, one of the sellers. He says, that the cotton was removed by the plaintiffs’ order to the pickery, for the purpose of being packed. Tankersley, on the 27th of November following, after the dissolution of his partnership with Dench, traded off the cotton to the defendant, in payment of a private debt due by him to a person named Ruddock. The defendant obtained possession of the cotton. Tankersley, in his deposition, says, that the cotton was sold and delivered to Weld & Co. at the time just mentioned ; and although he declares, in his cross-examination, that the cotton was not delivered to the plaintiffs at the time the money was advanced, still he does not contradict the fact alleged in the testimony of Dench, that the cotton was removed from Frerets’ press by the plaintiffs’ order. If we did not consider the fact of delivery established, (and of this opinion was the judge of the court below) we should have come to a different conclusion, provided the * rights set up by the defendant had been based upon a bond fide sale, according to the usual course of business, for a valuable consideration. As the matter stands, we consider the subsequent sale to the defendant as a fraud on the plaintiffs.

The judgment of the court below is affirmed, with costs. JO '