The plaintiffs in this suit claim from the defendant the repetition of the price of ninety-four and a half bales of cotton, which they purchased from him at public auction, and for which they paid him.
The cotton was destroyed by fire before it was counted or delivered to the plaintiffs, and the only question now to solve is, at whose risk was this cotton at the time of its destruction ?
The Judge of the first instance was of the opinion, and decided, that the sale was not one in gross, but one by tale ; that it never became perfect, and that the cotton remained at the risk of the seller.
It is unnecessary tp examine that ground, and the reasons thereupon *628adduced by the Judge a quo ; although the decree rendered by him in favor of the plaintiffs rested solely on those reasons, and on the application he made of Article 2-133 O. C.
We are satisfied that the loss of the cotton occurred before the expiration of the three clear days, which, by the announced condition of the public sale of the 23d of April, purchasers were allowed to remove it; during which whole delay it was to remain at the risk of the seller.
It is true that, at the sale of the 23d April, this condition, before recited, was not announced totidem verbis ; but it was then and there distinctly declared by the seller, previous to any bid being made, that the lots of cotton then about to be offered, would be made on the same terms and conditions as had been stipulated and proclaimed at the first sale of cotton, on the 11th April; and this was the conditions of that sale. The evidence does not leave this doubtful. See Art. 1895 C. C.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, at the costs of the appellants.