The plaintiff alleges that W. B. Fisher & Go., a commercial firm doing business at New Orleans and composed of W. P. Fisher, a resident of New Orleans, and King, a resident of St. Louis, purchased of him forty-five hogsheads of sugar for cash, but have failed to pay the price stipulated, and have disposed of the same, so that the plaintiff cannot now make the merchandize liable for the payment of his claim, and have incurred the pains and penalties of the Act of 1840. The arrest and condemnation of Fisher was prayed for, and a judgment against the firm. Prom a judgment in conformity with the prayer of the petition, Fisher has appealed.
The proceeding is based upon the 10th section of the Act of 1840, which roads as follows: “That if a debtor, &c., shall purchase property for cash, the delivery whereof shall bo made to him, and then shall sell or dispose of the Same without paying his vendor, or shall remove the same beyond the roach of such vendor, or shall conceal or cover the same in any manner, so that the *73vendor cannot render the same liable, any of such facts shall be held presumptive evidence of fraud, liable, however, like all other presumptions, to be disproved.”
By the 13th section, when a defendant is found guilty of defrauding a creditor, in the manner mentioned in the 10th or 11th section, the court may condemn him to be imprisoned for a period not exceeding three years, &c.
The first and most important question to be considered is, whether this was a cash sale, as contended by the plaintiff, or a credit sale, as contended by the defendants.
The only witness personally cognizant of the circumstances of the sale, was a clerk of the plaintiff, who made it. Ho says, the sugar, which consisted of two lots, in all forty-five hogsheads, was sold for cash, and Fisher made no objection .to the terms at the time. On cross-examination, he says : “ Fisher told me the river was frozen up at St. Louis, and asked me if Keane was quick with his bills. I told him I.thought not. He asked me if I could not wait a few days. I told him Mr. Keane was not quick with his bills; that he let them run a few days. Fisher wont on and looked at the lot, and said he would take the sugars. He then gave mo his name and the name of the boat on which he wished them shipped, that is, after he had looked at another lot and had taken both lots. I then went on and had the sugar weighed immediately. I followed Fisher's instructions, and shipped twenty-seven hogsheads (being one lot) oil the Iowa, and I think I gave Fisher the dray receipt for the same. The Iowa, I think, was bound for St. Louis. When Mr. Fisher asked me my terms, I told him cash. Mr. Fisher then asked me if I could not give him a few days; he told me his reason for asking for a few days, was that the river was frozen up. 1 told him that Mr. Keane was not quick with his bills, that he generally allowed them to run five or six days. W e then passed to the other lot of sugar, and Mr. Fisher said he would take the whole forty-five hogsheads.”
An attentive consideration of this testimony has brought us to the same conclusion to which the jury came, that is, that the sale was a cash sale, and that no agreement was made by the seller, which would have prevented him from demanding payment at any time after the delivery. The purchaser did not ask a stipulation for delay; his question upon being, told the sale was cash, assumed that the bill would be so made out, and the inquiry was whether the seller was in the habit of collecting his bills quickly. If suit had been brought for the purchase money the day after the sale, and the vendee had pleaded by way of exception, that the suit was premature, could the exception have been sustained ? Clearly not; the facts would not have furnished an essential element of a dilatory exception, an agreement for delay.
That a sale is not divested of its character as a cash sale by a delivery before payment, is obvious, although it is true the seller is not bound to deliver before payment.
The evidence is quite full to the effect that sugar is usually sold for cash, and is usually delivered before payment, the seller sending his bill afterwards; this course however being considered a mere act of courtesy and not of right. We do not see anything in this usage inconsistent with the law of sale as enunciated in our Code; and the Statute of 1840 recognizes such a course of business by the clearest implications. Indeed, if to constitute a cash sale the pay*74ment of the price and the delivery of the goods must be simultaneous, the clause of the statute for the protection of vendors, would be idle and inoperative.
The only serious difficulty wo have had in coming to a conclusion to affirm; the verdict in this case, arises from the fact that the vendor consented that a part of the goods should be shipped by the purchaser before payment. It seems to us that the plaintiff cannot hold the purchaser under the statute for thus disposing of those goods before payment, when he has himself assented to such disposition. But with regard to the residue of the sugar, the lot of IS hogsheads, there is nothing aside, from the above circumstance, to take the case out of the statute, and we do not think the rights of the vendor as regards that lot, can be affected by the waiver of them with respect to the other.
Although the District Judge refused to charge the jury in the precise words suggested by the defendants’ counsel, we think his charge as given was in substantial accordance with law, was not calculated to mislead the jury, and gave the defendants the benefit of the agreement suggested in the defendants’ application, if the jury should think such an agreement proved. In saying to the jury that the usage of merchants as to sales of sugar on the levee, in this city, was to bo regarded as a guide for their decision, the court no doubt alluded to the usage of which wo have already spoken. This usage not being in conflict with law, the court did not err in directing the attention of the jury to it, and the language used in doing so, was not calculated to induce the jury to give the usage an undue consideration in estimating the act and understanding of the parties.
Under the pleadings and proceedings in the cause, the finding of guilty of fraud is clearly referrible to Fisher, the only party arrested, and the only party whoso punishment was prayed for.
The presumption of fraud which the statute raises from the fact of buying for cash and disposing of the merchandize without paying the vendor, has not been satisfactorily disproved by other evidence.
It appears that one Sierra had a joint interest with Keane in certain sugar adventures, of which this was one. This fact appeared at the trial from the testimony of a witness. But as it also appeared that the business was done wholly in Keane's name, Sierra's interest being dormant, we think the court did not err in telling the jury the plaintiff might recover in his own name. See Norman v. Gillett, 2 Taunton, 325 ; Collyer, on Partnership, 394.
Judgment affirmed with costs.
Application for re-hearing refused.