Same Case on Reheaeino.
Ludeling, C. J.The defendant is sued for an account of bis agency in selling seventy-four hogsheads of tobacco shipped to him between the twenty-second of March and the first of May, 1861. The tobacco was sold in obedience to. instructions, for coin, and it netted $14,333 49 in gold, which was worth, at that date, and at the period when this suit was brought, $18,794 26 in currency.
The plaintiffs drew several bills against their shipments of tobacco, amounting to $8436 36, which the defendant accepted and paid.
The defendant rendered an account to the plaintiffs to which the plaintiffs urge the following objections :
That the charge of two and one-half per cent, commission for advancing, in addition to eight per cent, interest per annum, is unlawful and usurious.
That the bills drawn by the plaintiffs were paid in currency which was depreciated, and the amount thereof is charged up against the gold proceeds of the tobacco, and that the balance of interest is also charged up against said gold proceeds.
The defendant filed a general denial, and afterwards filed a supplemental answer, pleading the prescription of one and two years to the right of plaintiffs to object to the usurious charges in the account, and the prescription of three years against the demand of plaintiffs, which, it is alleged, is on an unacknowledged or open account.
The plea, as it respects the usurious interest, is without application. The plaintiffs have not paid any usurious interest — they are contesting the defendant’s right to apply their money to the payment of unlawful interest claimed by him.
The prescription of three years is equally untenable. The suit is brought upon a contract of agency, and it is barred by ten and not three years. 7 An. 53; 10 R. 487; 15 An. 534; 16 An. 397; 17 An. 246.
*703John E. King having made advances to Poindexter & Pollard on the shipments of tobacco to the amount of $8436 36, the latter became the debtors of the former for that amount, and King had-a privilege on the tobacco to secure the payment of the debt. If the tobacco had been destroyed, it would not be pretended that King eould have recovered $8436 36 in gold from his debtors — they could have discharged their liability in currency.
If the tobacco had been sold for United States treasury notes, King could have legally retained only $8436 30 out of the proceeds. On-what principle then can he be permitted to claim and retain $11,248 48 or its equivalent, in payment of the' $8436 36 due him'?
The shippers had aright to instruct their factor what fo sell their property for; they told Mm they wanted gold for the balance coming to them. How could this fact change the rights of the defendant against the plaintiffs 1
We cannot perceive why his debt should be paid in gold, if the tobacco were sold lor gold, and in currency, if the tobacco were sold for currency. If the defendant had alleged and proved that he had been obliged to pay out gold for the plaintiffs, there might have been some equity in his demand, but such is not the fact. It is admitted that the banks suspended specie payment on the seventeenth day of September, 1861, and it is proved that after that period, the business in New Orleans (when the drafts of the plaintiffs were paid) was mainly carried on in currency. The Hoover drafts, due on the twenty-ninth of January, 1862, amount to $5455; ahd that they, at least, were paid in a depreciated currency, the evidonce in the reebrd leaves no reasonable doubt. It is contended that the plaintiffs are estopped from claimingany thing from defendant .because .they acquiesced in the account rendered to them by not objecting sooner. This question is not presented by the pleadings. But if it had been it would not have prevented the plaintiffs from showing errors in the account. The effect resulting from an acknowledgment of the account would be to shift the anus of proof. “These accounts are necessarily provisional until settled, and even after settlement, may be rectified' by either party on account of errors or omissions, subject to which every settlement is held to be made.” 2 An. 27.
The defendant is bound to account to his principals for the balance of the gold receipts. The agent cannot be. allowed to enrich himself at the expense of his principal. . .
It is therefore ordered, adjudged and decreed that the judgment of this court rendered on the thirtieth November, 1868, be avoided and reversed, and that the judgment of the- District Court be amended so as to reduce the amount of the judgment of the District Court in favor of the plaintiffs to the sum of two thousand nine hundred and seventy-seven dollars and fifty-four cents, and'that the judgment thus amended be affirmed, and that the appellees pay the costs of this appeal.
*704Wxly, J.I still adhere to the views expressed in the original decision of this case.
The drafts were drawn on the consignment and paid by the defendant before the issue of the United States currency, and in the absence of proof to the contrary, the presumption is inevitable that they were paid in lawful money, gold or silver, which was then tho only legal tender. I cannot presume — indeed the plaintiffs have not alleged — that the defendant paid their drafts in Confederate notes; parties will not be presumed to have dealt in an unlawful currency when it has neither been alleged nor proved. If the agent has paid gold on tho consignment, and we can presume nothing else, he is entitled to recover tho same from his principal, whether the consignment be destroyed or be sold, under tho directions .of tho latter, for United States currency or gold. It matters not that the tobacco could have been sold on eighth December, 1862, for either gold or United States currency (the latter being then in circulation). The drafts were drawn in 1861, and they were paid before the act was passed authorizing tho issue of United States currency; they could not have been lawfully discharged or paid except in gold or silver. And tho principal was bound to return an equal value to his agent.
Tho account was rendered by tho defendant to tho plaintiffs nearly nine months before any objection was made. In that account ho imputed a sufficient amount of the gold imococds to the payment of the amount of his advances. The account of sales was in gold, the amount of advances was deducted therefrom, dollar for dollar, in tho account. After the lapse of so long a time, without objection, it ceased to be an open account, and became, a stated account between the parties.
Now, if plaintiffs seek to go behind that account or settlement, and claim that their factor has been unfaithful; that, instead of paying the drafts which they drew on him in 1861, in gold or silver (the only lawful money), he in fact discharged the same in Confederate notes, ol less value, they must allege and prove the infidelity of the agent; they must make out their case; they cannot establish it upon presumptions that are unlawful, and therefore impossible.
If the relation of defendant and plaintiffs be oniy that of debtor and creditor, and therefore the debt of the latter could have been discharged on eighth December, 1862, in United States currency, dollar for dollar, the defendant could compensate his debt with tho gold of plaintiff which happened to be in his hands, dollar for dollar.
For the foregoing reasons and those assigned in the original opinion of this court, I cannot assent to the decision just rendered.