delivered the opinion of the court. '
The plaintiff alleges he sent thirty-eight bales of cotton to the defendant to sell for his, the plaintiff’s account, which he refuses and neglects to account for.
The answer accounts for eight oí the bales, and avers that the other 30 were sold on the 9th of January,and destroyed by fire on the night of the 12th, before the defendant could have them weighed and delivered, without any fault or neglect on his part.
The defendant claimed abalance for supplies furnished the plaintiff beyond the proceeds of the sale of the eight bales.
There was judgment against the defendant for the value ■ of the thirty-eight bales, and he appealed. , ‘
The record shews the thirty bales were sold on Saturday, the ninth of January 1830, and were neither weighed or delivered on that day, nor on the following Monday or Tuesday the 11th and 12th ; on the night of the latter day, the cotton was consumed by fire, without any other fault or neglect of the defendant, but the alleged fault, not delivering the cotton.
The defendant informed the plaintiff he, concurred he might recover from his vendors, on account of their neglect and delay to take possession of the cotton: and requested to be furnished with evidence of the weight of the cotton for- that , purpose. One of the plaintiffs coming to the city, the de*177fendant repeated the request to him, and asked leave to use the plaintiffs’ name on bringing suit against the buyers. But this was refused the plaintiff in the city, refusing to consult his partner.
Where a price is agreed upon for an article which is neither weighed or delivered, and two days thereafter it he destroyed, it is not such a delay as to make the agent liable to the owner. Nor is it incumbent upon the former to sue the buyer, when ■ the owner declines giving him authority for that purpose.On these?facts, the judge a quo, has concluded the defendant was not chargeable, on account of the delay, in delivering the cotton, during the two days between the sale and the destruction of the cotton; but that he was, for the neglect to sue his buyers.
We are of opinion a delay of two days was not necessarily evidence of such neglect on the part of the defendant, as ought to make him answerable for the subsequent misfortune, and the judge did not err in concluding he ought not to be charged on that account.
But we think that the defendant, having applied for evidence, to support a suit against the buyers, and the plaintiffs having neglected to furnish it, and having declined to allow the use of their names in such a suit, cannot complain it was not brought, especially as they mightpiave brought, and still may bring it. The judge, therefore, in our opinion, erred in charging the defendant with the value of the cotton on this account.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed, and proceeding to give such a judgment as, in our opinion, ought to have been given below. It is ordered, adjudged and decreed, that the defendants claim, in recon-vention, for three hundreed and five dollars, forty-six cents (305 46) be allowed, that he be charged with two hundred and nine dollars thirty-four cents (209 34,) with proceeds of the eight bales, and that there be judgment for the balance, ninety-six dollars twelve cents (96 12), with eosts in both COUI'tS.