BRANDER ET AL. vs. NEW-ORLEANS COTTON PRESS CO., 11 La. 168

Martin, J., delivered the opinion of the-court. The plaintiffs are appellants from a judgment which reduces their claim against the defendants. It was composed of four items; the first related to a number of bales of cotton which were unaccounted for. An allowance was made at the rate of seventeen cents per pound, which was the lowest price of the different parcels delivered by the plaintiffs to the defendants. The plaintiffs and appellants complain that the coul'f' erred in refusing to allow the average of the prices of the different parcels.

This might be correct according to the rule laid down by the poet, “In medio tutissimus ibis.” The court, however has thought the rule of law the safest, “ In , ,, . . . . ,, dubus semper, quod minimum est sequimur. The owner can-eotton0deli-vered back in a damaged state, when he fails to receivedhigood order, or that it was damaged while in the" the^defenGant’s agent. ^ does not aPPear to us that, it erred. It is the duty Plaintiffto make his claim certain. It does not suffice to make it probable, and he must suffer for the insufficiency of his proof.

The second item was for an alleged loss on cotton delivered back a damaged state. The court correctly rejected this item - the plaintiffs having failed to show that the cotton . x . ° was delivered in good order, or to make it appear that it had been damaged while in the defendants’ possession^ Tlie two other items were allowed. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.