The parties admit that the five hundred dollars in gold was sent by the defendant to the plaintiffs, not as a payment in money of a debt, but to be sold and accounted for as a commodity ; and the question between them is, At what rate is it to be accounted for ?
The instructions from the defendant to the plaintiffs, at the time of sending them the gold, were to sell it at the market price, but at the rate of not less than $2.00. The price of gold in the market was not then, and has never since been, as high as that. To have sold it for less would have been a breach of those instructions. It does not appear that the defendant ever gave them any other instructions, or had not equal means of knowledge with the plaintiffs of the market price of gold, or that such price since July 1867 has exceeded the rate at which the plaintiffs at that date, upon liquidating and closing up the affairs of their partnership, credited it on their books to the defendant. Under these circumstances, we are of opinion that there is no evidence of any negligence, or breach of duty, or appropriation of the gold to their own use, on the part of the plaintiffs before that date, and no ground for charging them with the gold at the market price at the time when it was originally received by them.
Exceptions sustained.