William M. Lambeth and another v. David Burney, 3 Rob. 251

Martin, J. The defendant is appellant from a judgment, by which the plaintiffs have recovered the balance of an account against him. He complains that he has been allowed only $1864 78, as the net proceeds of fifty bales of cotton, which he sent to the plaintiffs to be sold for his account, and contends that he is entitled therefor to nearly double that amount. The facts of the case are these : The cotton was sent to the plaintiffs on the 25th of November, 1837, accompanied by a letter, directing them not to sell it, for a short time, for less than twelve and a half cents a pound.

The defendant expresses his opinion that the times would soon change for the better. On the 15th of February, 1838, the plaintiffs having been unable to obtain the limited price, wrote to the defendant that they had decided to ship the cotton to Havre, and informing him they would have it valued, and that he might have his choice between the value in New Orleans and the nett proceeds at Havre. This letter was not answered until the 25th of March following, when he requested them to inform him of the valuation they had made of the cotton, and to send him their account.

His counsel has urged that he limited them, as to the price at which the cotton was to be sold, and that, having disposed of it for less, they are bound to him for the amount of the limit. The counsel for the plaintiffs has shown that, from • November, 1837, to April, 1S38, cotton ranged from seven and a half to thirteen cents per pound.

In the appraisement which the plaintiffs caused to be made, and which was read without opposition, the appraisers attest, that they examined samples of the defendant’s cotton sent to the plaintiffs in November, 1837, and declare that, between that time and February following, such cottqn was worth from eight and three quarters to nine and a quarter cents per pound at the most, and that better cotton was even purchased at eight and three quarters ; and, further, that they consider nine cents per pound a fair and liberal price for such cotton, in the month of February, when it was shipped.

It does not appear to us that the plaintiffs acted incorrectly. The defendant’s instructions would not have authorized them to hold up the cotton for a long time. In the hope of obtaining the limited pricej they held it up for nearly ninety days, which is about one-third of the cotton season. Such was the opinion of the jury. The plaintiffs and appellees have prayed for the amendment of the judgment in their favor, on the ground that the jury erroneously disregarded their claim to interest at the rate of ten per cent, urged in an amended petition.

This claim for conventional interest ought to have been established by written proof. The plaintiffs did not apply to the District Court for a new trial, on account of legal interest not having been allowed ; and as they did not seek it before the first judge, it is too late to ask it of us. Judgment affirmed.