on petition eor rehearing.
Per Curiam.The defendant in error has filed a petition for rehearing, but takes exception only to certain language in the former opinion used in discussing the sufficiency of the evidence, and does not question the correctness of the conclusions reached upon the other points discussed in the opinion. Exception is taken particularly to the following language of the opinion: “The plaintiffs here were bound under their contract to exercise ordinary care, skill and diligence to obtain the fair market value of the wool. We look in vain to find any evidence 'in this record showing, or tending to show negligence in that respect on the part of the plaintiffs. * * * The undisputed evidence, notwithstanding the market quotations furnished, shows that they used due diligence and were unable to find a purchaser who would pay *299the market quotations for the wool, or sufficient'to reimburse them for their advances and charges.” In the brief supporting the petition for rehearing it is conceded that the judgment must be reversed upon other grounds stated in the opinion and not now contested, but it is contended that there was evidence in the case tending to show that the plaintiffs below held the consigned wool for several months during a falling market, and that such evidence was not only competent, but was proper to go to the jury, and sufficient prima facie to show negligence or lack of diligence on the part of the plaintiffs. And it is said that the language above quoted from the former opinion ignores such evidence, and unless modified will have the effect upon a new trial of preventing the submission of such evidence to the jury.
In stating that “We look in vain to find any evidence in this record showing, or tending to show negligence in that respect on the part of plaintiffs,” and that “The undisputed evidence * * * shows that they used due diligence,” &c., reference was had to the whole of the evidence, and it was not intended as an assertion that there was no evidence tending to show lack of diligence. If there was evidence in the case which might properly be understood as showing that there had been a long delay during a falling market, or if upon another trial evidence to that effect is introduced, then to that extent the evidence tended, or may tend, to show lack of diligence, and sufficient to justify the submission of the matter to the jury, and if unexplained might be sufficient to justify a finding of negligence. (Field v. Farrington, 10 Wall. 141, 19 L. Ed. 923.) It was not the intention by .the use of the language above quoted to foreclose or embarrass the defendant below, plaintiff in error here, in the proof of his defense upon another trial. It-must be remembered that advances had been made by the factors in this case, and in view of such fact, and the failure, as it seemed to the court, to show that the wool could have been sold at an earlier date for a sufficient amount to reimburse the factors for their advances, and all the evidence *300bearing upon the question, the court was of the opinion, intended to be expressed by the language now criticized, that upon the whole evidence negligence had not been shown. The above explanation of the language used in expressing that opinion will, we think, obviate any danger of its misconstruction upon another trial. We repeat that it was not intended to deny the admissibility of evidence showing long delay in selling the wool during a falling market, nor its sufficiency, in the absence of satisfactory explanation, to show negligence, but in applying that principle where advances have been made, the rule concerning the duty of a factor under such circumstances’should be considered, and the jury properly instructed with reference thereto. Having thus explained the language excepted to, a rehearing is deemed unnecessary and will be denied.