The judgment of the court was pronounced by
Rost, J.This is an action for the proceeds of several parcels.of cotton, shipped to the defendants,, as factors, under the following circumstances : The plaintiffs purchased a plantation, with a .crop ,of .cotton then hanging by the roots upon it. Certain articles of agreement were subsequently reduced to writing, by which J. A. Cotton, the former owner of the land, was to gather the crop and prepare it for market with his hands, and ship it to M. D. Cooper dj- Co., factors, in New Orleans, for sale ; o.ut of the proceeds, the plaintiffs were to recoive $5,000, and afterwards to convey the land back to him, on the conditions agreed on between them. This agreement p.eyer was signed by the parties. Colton gathered the crop with his hands, and shipped 104 bales of it .to the defendants, at different times. The plaintiffs having been apprised of these shipments, notified the defendants not to dispose of the proceeds without their concurrence, as the cotton came from their plantation in West Feliciana, and had been shipped to them by Cotton, without authority. They stated, at the same time, that they did not object to the defendants, as factors. The defendants, after being thus notified^ made .adyances to J. A. Cotton, to the amount of $981 2.8, and were authorised by him to pay over to the plaintiffs th.e balance in their hands.. The plaintiffs obtained a judgment for that balance in.the .court below, apd being dissatisfied with it they appealed.
It is unnecessary to determine whether parol evidence was properly received in support of any part of an agreement contemplating a transfer of real estate. The shipments made by Cotton to the defendants, in ljis own naipe, were a direct violation of hjs contract, and he cannot claim their proceeds under it. We cannot consider him as a partner. The light most favorable to the defendants in which he can be viewed is, that of agent of the plaintiffs; and there cap be no doubt of the legal right of the latter to intercept the funds in the hands of the defendants, by giving them notice not to pay them over to him. That no,tice renders them liable for any subsequent payment made to the agent, and not depending on a superior right. Story on Agency, §429. In cases of ordinary deposit, where the thing deposited is to be returned, art. 2926 of the Civil Code requires the depositary to return the deposit in all cases, unless it is arrested in hands by legal process, at the suit of a third person. The decision in the case of Oneto v. Delaunay, 6 La. 32, was made upon that .article, and is inapplicable to the liability of factors receiving goods for sale. That liability is fixed by coni*' xnercial usage.
*559The defendants must account to the plaintiffs for the amount of the advances made by them to Cotton, after they were notified.
It is, therefore, ordered, that the judgment in this case be'reversed, and that there be judgment in favor of the plaintiffs, and against the defendants, for §¡1,682 20, with interest at the rate of five per cent per annum, from the 4th January, 1845, till paid, and costs in both courts-.