dissenting t
I am unable to arrive at any other conclusion than that the defendant paid the Hoover drafts, amounting to $5456 36, in what was called “ currency.” These drafts fell due on the twenty-ninth of January, 1802. All the facts in the record point to this conclusion as inevitable. Jacob Barker states that the banks in New Orleans suspended specie payments on the seventeenth September, 1861, except the Southern Bank. He states also that from the eighth to the fifteenth December, 1862, gold was forty per cent, premium for treasury notes; and that on the fourteenth February, 1862, gold was at thirty-seven and a half per cent, premium for treasury notes. It is in evidence that in December, 1862, business in New Orleans was mainly done in currency. (Record, p. 14.) The defendant in December, 1862, paid over by order of his principals to Given, Watt & Co. in gold $4533 92. A member of that firm swears that for this payment in gold the firm credited the plaintiffs with $5726, the amount they owed that firm. This is the same thing as paying the debt in “ currency,” for the defendant required them to receive $4533 92 in gold, as equivalent to $5726 in currency. I can not suppose that, having paid a debt of his principals in currency, after he had received the gold proceeds of the tobacco, he paid the Hoover drafts in gold or silver ten months before he had funds of any kind in hand belonging to his principals. He could not have paid these drafts in paper money of any kind which was of equal value with gold or silver, for there was at that time in this country no such paper money. Hedged around as he is by the evidence in the record, I think it illogical to deduce that the defendant paid these drafts in gold or in bank notes, convertible at will into specie, because it is not affirmatively shown that he made the payment in depreciated currency. On the contrary, all the facts in evidence raise a legitimate and very strong presumption against him, which must prevail in the absence of any proof tending to rebut that presumption.
*701Considering it then established that he did pay the two Hoover drafts in “ currency” thirty-seven and a half per cent, below the value of gold, and that he charged the amount dollar for dollar against the gold proceeds of the tobacco, I think he ought to account to his principals for the premium on gold for “ currency” at the time the payment was made, or rather the thirty per cent, premium claimed by the plaintiffs in their petition.
The relation that existed between the parties was clearly that of principal and agent or factor ;■ standing in that relation, the primary duty of the defendant was strict fidelity to the interests of his principals and a proper regard of his legal obligation to restore to them all profits that may have arisen from, and to give to them the benefit of all advantages that may have grown out of their business entrusted to his care. Civil Code, article 2974; 10 Rob. 487.
I do not think the plea of prescription can avail the defendant. The claim simply of the gold premium can not he assimilated to an open account standing isolated from the business of the mandate.. It springs from the transactions arising from the agency, and m'akes a part of them. It arises ex-ooniractu, and is not barred by the prescription of three years. C. C. article 3508; 15 An. 143 and 534; 16 An. 397; 17 An. 246. The plea of ratification, I think, should n,ot prevail. True, some nine or ten months intervened between the time of the rendition of the account and the date of the letter of plaintiffs objecting to the account.
It is shown that intercourse between New Orleans and.Clarksville was free in May, 1862. That the last named place was in possession oi the Federal forces in 1862, and that it was not recaptured by the insurgents. This by no means establishes that there was any direct communication between the places during the whole period embracing the transactions. It appears that the communication was circuitous, being by the way of New Y'ork. A state of war. existed in a considerable portion of the country through which this communication was had. It is not shown that the communication,'such as it was, was safe, reliable and constantly free from suspension and delay. Under ordinary circumstances the pica might have weight, but under those that did éxist, I am inclined to think none should be attached to it.
The plaintiff claiming equity should do equity. The first two bills drawn upon the defendant were paid by him before the suspension of specie payments; I think the inference clear that they were paid in specie or bank notes, convertible at that time into gold or silver at the will of the holder. The defendant should not therefore be held to account, so far as those bills are concerned, for any premium. The judgment, I think, erroneous in that respect, and should be reduced. Tlie defendant is not protected by the doctrine announced in Weaver v. Anfou and subsequent decisions. The facts in this case are wholly *702different. In Weaver v. Anfou, tire defendant was estopped by bis baste to sbow that be bad been dealing in an unlawful currency in derogation of law and morals, alleging bis own turpitude to avoid bis contracts. The check was paid either in Confederate money or in bank notes, and the court presumed the transaction to have been in lawful rather than in unlawful currency. This presumption in favor of the plaintiff in that case would ceteris paribus have availed the defendant in this case; but under the evidence it is swept away; for it is distinctly in proof that in the important payment made for his principal to Given, Watt & Co. he discharged the debt in currency, for he compelled his agent’s creditor to receive gold with the high premium for it in payment of a debt contracted in 1860.