Defendants are sued to deliver to plaintiff 18 bales of cotton, sold by weight, or to pay damages.
■Judgment was rendered in the lower court condemning defendants to *152deliver to plaintiff 18 bales of cotton, or in default thereof, to'pay hint' $1,690 50, as damages and cost of suit.
Defendants appealed.
On the 11th March, 1862, plaintiff paid defendants $800 for 18 bales of cotton sold to him, at 10 cents per pound, to be delivered in the Mississippi Cotton Press, in New Orleans. On 24th April, 1862, all cotton in the press was taken out by force and nearly all burned.
Defendants proved that, on the 17th March, ■ 1862, they ordered and caused to be weighed, in the press, 18 bales of cotton, but for whom witness did not know, and that this cotton was in the press on 24th April, 1862, and that most of it was burned.
Article 2433 of the Civil Code provides, that when goods, produce or other objects are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller, until they be weighed, counted, or measured; but the buyer may require, either the delivery, or damages in case of non-execution of the contract.
The weighing of 18 bales' of cotton for an unknown person does not prove that they were weighed for plaintiff, and consequently they did not place them at his risk, Even did it so prove, we would not deem it sufficient to release defendants from the risk and loss, it being an ex parte proceeding.
Article 1909 of Civil Code provides that, if the object to be given is uncertain, it is at the risk of the creditor only from the time he is in legal default for not receiving the thing after it has been tendered.
There was no time agreed upon for the weighing of the cotton; and we think that it was necessary to give notice and to put plaintiff in default, as required by this article, before the cotton would be at his risk.
Defendants have invoked the custom of merchants, but they have not proved delivery, as required by custom.
Plaintiff, on appeal, has asked that the damages be increased.
Damages were assessed by the judge of the lower court, at the time that defendants were put in default.
In this he was correct. See 13 La. Rep. 229.
Judgment affirmed, with costs.
Howeuxi, J,, recused.