delivered the opinion of the court.
The plaintiff alleges he employed the defendant to purchase for him a quantity of tobacco in hales, to he shipped to La Bacca. That he purchased one thousand hales, for which he charged him four dollars per hale, while he had only paid three dollars for it, that he charged four hundred dollars for commissions and expenses, and that the tobacco on its arrival at the place of destination was found to he entirely worthless.
The defendant admits he was employed as agent of the plaintiff, purchased the tobacco for him in good faith and therefore not liable. He further admits he did charge the plaintiff one dollar per hale more than he paid for it, hut says it is the custom of agents in New Orleans to charge the market price for whatever th§y purchase, although they do not pay so much themselves. He says he got the tobacco at three dollars per hale by good management and thinks he ought to have the benefit of it, but if the court should he of opinion that it is not correct, he is willing the extra dollar per bale should be disallowed. He further avers that although the tobacco was not of the best quality, it was good for the price ; that the plaintiff refused to receive it, in consequence of expected hostilities between Mexico and Texas, which would prevent him from smuggling it into the territories of the former nation.- He also sets up a demand in reconvention for freight, insurance and other charges.
The case was submitted to a jury, who, after an examination of a number of witnesses, found a verdict for the plaintiff for $3770, for which judgment was rendered and defendant appealed.
The case is one of fact entirely. We think the evidence shows the tobacco was worthless or nearly so. We also think that an agent acting in the manner the defendant has, is not in good, faith. We cannot give our assent to the alleged cus*102tom in this city of agents charging their principals more than tkgy pay for articles purchased for them, and adjudge it unlawful and dishonest although the agent may effect his bargains by good management.
The practice of agents charging their principals more than they pay for the articles purchased by them is illegal and should be discountenanced.The jury seem to have understood the case, and we see no good reason to disturb their verdict.-
The plaintiff has pressed us to allow him ten per cent, damages for a frivolous appeal. If he had come before us as a fair merchant, we should have listened to him with more favor, but as it is not denied his object in purchasing the tobacco was to violate the revenue laws of another nation, we do not think he ought to be much favored.
The judgment of the Commercial Court is therefore affirmed with costs.