In 1861, plaintiffs consigned to defendant seventy-four hogsheads tobacco, which were sold by the latter for account of plain-tiiffs in December, 1862, for $14,338 36 in .gold, and account current thereof promptly rendered by defendant.
*698During tlie year 1801 plaintiffs drew on defendant their several bills, amounting in tlie aggregate to $8436 36, which defendant accepted and paid out of his own funds, and for which, with interest, plaintiffs became his debtor.
Immediately after the sale of the consignment, as aforesaid, the defendant paid over the cash balances in gold to Messrs. Watt, Given & Co., as requested by plaintiffs, to wit, $4533 92.
On twenty-first September, 1863, plaintiffs wrote to the defendant, objecting to some of the items of the account, and stating, ‘‘now we claim that you owe us the premium the gold was then worth—
On amount of bills.-.$8,436 36
On amount of commissions. 210 90
On amount of interest balance. 785 76
Total.$9,433 02
Plaintiffs’ petition alleges “the difference of value of gold and currency of the city at the date of said transaction was fully thirty per cent, in favor of gold, which on said sum of $8436 36, and the interest charge of $785 76, makes the full sum of $2881 91, 'which, added to the $210 90 erroneously charged for commissions, -makes the sum of $3092 81.” To recover this $3092 81 this suit has been instituted.
The court below gave judgment in favor of plaintiffs, and defendant has appealed.
"Plaintiffs contend that their factor, John E. King, could not apply the gold proceeds of the tobacco to the extinguishment of his account against them for bills drawn on said consignment in 1861; that as their consignee he should have allowed them the premium of thirty percent. in favor of gold in settlement of "his said account, and that he should not have charged them two and a half per cent, commissions on the various bills drawn by them against their said consignment.
Plaintiffs contend that their factor paid these bills in currency, and in his account charged them as paid -in gold, or applied their gold to the payment of his account.
There is no positive evidence in the record to establish the allegations of plaintiffs. The bills drawn by plaintiffs in 1861 could not have been paid in United States treasury notes, because they were not then in circulation in this city. The act authorizing issue of legal tender notes only passed twenty-fifth February, 1862. There is no allegation or proof that said bills were paid by the drawee, the defendant, in Confederate notes; and we can not presume that the parties before this court dealt in an unlawful currency.
It is true, the record shows that “the banks in New Orleans suspended specie payment on seventeenth September, 1861, excepting the Southern Bank.” But it does not follow that defendant could not pay the various drafts of his consignors in lawful money without doing so through the banks.
*699It seems the various bills accepted and paid by defendant were given in part payment for the tobacco which plaintiffs had bought and shipped to him. Plaintiffs must have received a lawful consideration for the bills, and what difference was it to them how the drawee paid the payee thereof? The bills were made payable in dollars and not in any particular currency.
Now, if plaintiffs had desired to ascertain positively in what currency the bills were paid by the defendant, why did they not get the evidence of the payee of those bills, who could state positively how ho was paid and in what currency ?
Defendant occupied the position of factor toward the plaintiffs, and also the position of creditor for the amount of-his individual funds advanced to pay plaintiffs’ bills. What was the relation of the parties to each other on eighth December, 1862, the day the consignment of tobacco"was sold? Plaintiffs were owing the defendant the amount of money he had advanced for them and interest thereon. They were not owing him the illegal charge of two and 'a- half per cent, commissions on the bills drawn against the consignment in his hands. On the other hand, the defendant was owing the plaintiff the full amount of the net proceeds of the sale of tobacco.
At once, by operation of law, the entire indebtedness of plaintiffs to defendant became extinguished by compensation, and defendant was only owing the plaintiffs the balance due out of the proceeds of said consignment. Compensation only extinguished the amount of lawful indebtedness of plaintiffs to defendant in lawful money. Gold is lawful money of the United States; and an indebtedness in dollars can be compensated by a counter indebtedness in gold.
At the time the bills were drawn and delivered to the payee specie was the only legal tender of the United States. In the absence of positive evidence we must presume that the defendant paid those bills in lawful money, and plaintiffs became indebted to him from the time of the payment thereof.
We think, then, on eighth December, 1862, all debts, lawful claims, against plaintiffs became .extinguished by compensation, and that defendant then occupied the relation of factor toward plaintiffs, owing them only for the balance of the proceeds of the tobacco. Defendant seems to have acte'd faithfully for his consignors; his sale seems to have given satisfaction, and he paid over , the $4533 92 in gold promptly to Messrs. Given, Watt & Co. at the request of plaintiffs. Indeed plaintiffs were very late in raising any objection to defendant’s account current, rendered to them nearly nine months before.
We do not think the plea of usury, set up by defendant, applies to this case.
We regard this as an action of mandate, not prescribable in three years as an open account. Ten years-is the only prescription against such a demand. 17 A. 246, and the authorities there cited.
*700Under the circumstances of the case, we believe that defendant is only indebted to plaintiffs $210 90, the amount of the illegal charge made by him for commissions on plaintiffs’ bills.
It is therefore ordered and decreed' that, the judgment of the court below be avoided and annulled, and proceeding now to give such judgment as the court should have rendered .in this case, it is ordered, adjudged and decreed that plaintiffs have judgment against defendant for $210 90 with five per cent, interest thereon from eighth December, 1802, and the cost of the court below, plaintiff to pay cost of this appeal/