Gillet v. Theall , 16 La. 46 ( 1840 )

Morphy, J.,

delivered the opinion of the court.

This suit is brought on two promissory notes, and on an open account for goods and merchandize sold to the defendant. The claim is not disputed, but the defendant opposes as an off-set, the value of six bales of cotton forwarded to the plaintiffs in New-Orleans, with orders to sell (hem and place the proceeds to his credit. This offset having been allowed, the plaintiffs appealed. The defendant, in a letter enclosing the bill of lading to plaintiffs, directed them to obtain at least ten and a half cents per pound for his cotton, and in case it would not sell for that price, on the levee, to have it stored until he should give further instructions, or come to town. There is an admission on record that at the time defendant’s cotton reached the city, the market price was twelve and a half cents per pound ; and that this cotton, which was of good quality, was worth that price.

The evidence shows that, upon the arrival of the cotton, one George Heno, was employed by plaintiffs to sample it, in order to sell it; but that, not having been sold on the levee, the cotton was stored in a ware-house, wherein, shortly after, it was destroyed by fire. To escape the operation of the well known rule “res peril domino,” the defendant contends that the loss of this cotton must be borne by plaintiffs, because they have neglected to sell it on the levee pursuant to his orders ; that being authorized to sell at ten and a half cents per pound they could have easily disposed of it, and that, at all events, they have failed to show any exertion or diligence. To this the plaintiffs answer, that having employed a broker to attend to the sale, they have done all that could reasonably be expected of them; and that if he has not succeeded in selling, the fault is not theirs. The high price of the market might well raise the presumption that a sale could have been effected on the levee, at the price fixed by defendant; but from the fact of no purchaser having been iraraedialely procured, it does not follow as a necessary consei i „ , i i quence that the plaintiffs did actually neglect or disobey the defendant’s instructions. The plaintiffs were dry goods, not commission, merchants : and we think they showed sufficient diligence by forthwith engaging a codon broker to effect the sale. Their interest as well as the broker’s was to sell, had any offer been made during the limited time the property or merchandize is suffered by the city ordinances to incumber the levee. The cotton was destroyed after it had been stored pursuant to the defendant’s order; and it is not shown that plaintiff’s were guilty of any fault or neglect in not selling it before. They pursued, for their principal, the course they would have followed for themselves, had the cotton been theirs. Upon the whole, we are of opinion that the offset was improperly allowed.

The consignees being dry goods merchants, are considered as díHgencé by forthwith employmg-a cotton broker to effeetasale-

It is, therefore, ordered that the judgment of the district court be annulled, avoided and reversed; and proceeding to give ,such judgment; as, in our opinion, ought to have been rendered below : We adjudge and decree, that the plaintiffs do recover of the defendant eleven hundred and fifty - four dollars and ninety-one cents, with legal interest, from judicial demand, on nine hundred and thirty-four dollars and two cents, amount of the two notes sued on, and costs in both courts.