delivered the opinion of the court.
The record showsthaton the 19th ofFebruary last, plaintiff placed in the hands of one Cary Robinson, an exchange broker of this city, two thousand and sixty-five dollars in bank notes of-various banks of the stale of Illinois, for the purpose of having said notes sold or exchanged for Louisiana currency, at a discount of one and a half per cent. That on the same day, Robinson having left in the hands of his clerk *531nine hundred and ninelv-fivo dollars of this money with directions to sell it at the above discount, the defendant who is also a broker and was in the habit, of selling to and buying from Robinson uncurrent money, stepped into the office and proposed to buy this amount at two and a half per cent; the clerk not recollecting at what rate it was to be sold, said that he had better see Robinson; he consented, however, at defendant’s request, to let him take away the money under the express understanding that if Robinson would not sell at' that rate, he, defendant, would return him the money. As soon as Robinson came in and was informed of what had passed, he sent his-clerk to defendant to get back the money, declaring that he would not sell it at that rale. The defendant answered that he had already disposed of the money, and would see about it; Robinson failed a day or two after. Under those facts the plaintiff claims the money taken by defendant as being yet his properly, while defendant contends that he purchased it from Robinson in the usual course of business, and has carried to his credit the net proceeds of this money at two and a half per cent, in an account current annexed to his answer. The case was tried by a jury who brought in a verdict for defendant. The judge below overruled a motion for a new trial, declaring that he was satisfied that the verdict should have been for plaintiff, but that as the evidence was clear and uncontradicted, this court might render such judgment as the justice of the case required.
The only question to be solved is one of fact, to wit; whether there has been a sale of this .Illinois money, which according to the evidence belonged to the plaintiff. Defendant has attempted to prove a sale by the testimony of a single witness taken by commission before a justice of the peace : He states that on the 19th of February at 11 o’clock, A. M., Robinson in his presence agreed to sell this uncurrent money to defendant at a discount of two and a half per cent.; far from being supported by any corroboratingcircumstances, this testimony is directly contradicted by Robinson who denies having made any such agreement with defendant, either on the day alluded to or afterwards. When Robinson at about 3 o’clock *532on the same day sent to get the money back, defendant did not assert, any right to it by purchase from Robinson, but answered only that he had already disposed of the money, and would see about it; notwithstanding this answer, it would appear that defendant still had the money in his possession at that hour, for his clerk testifies that it was pul in a drawer and did not remain longer on hand than that day or the next. He thought it was sold the same evening, but could not swear that it was not in defendant’s possession the next day, and (hat it was about three o’clock on the 19th that defendant directed him to credit Robinson on his account current with the net proceeds of this money at two and a half per cent. Upon the whole the evidence has appeared to us insufficient to establish the agreement which alone could authorize the defendant to apply this money to the payment of his own debt; admitting that he honestly believed that Robinson was selling it for his own account. Louisiana Code, article 2257.
I Unourrent money left in the hands of a broker, to sell at a discount, and taken by another broker, having dealings with, and a creditor of the first, under pretence of selling it; he cannot appropriate it in payment of his debt, without the consent of the other; but the true owner and original depositor will recover its value in his hands.It is, therefore, ordered, that the judgment of the court below be reversed; and this court proceeding to give such judgment as, in their opinion, should have been rendered below, it is ordered, and adjudged, that the plaintiff1 do recover of the defendant the value of said notes, at a discount of one and a half per cent, to wit: Nine hundred and eighty dollars and eight cenls, with interest and costs in both courts.