delivered the opinion of this court.
In deciding the present appeal, we need not pronounce upon the custom in Baltimore, which, it is said, entitles the consignee of the larger parcel of grain, in a mixed cargo, to sell the whole, and account to the consignees of the smaller lots for the purchase money of their consignments, because, as we think, the merits of the controversy depend on a question not affected by such alleged custom.
It appears that the plaintiffs below, sold the grain, on the 13th of October 1856, to one Ballard, who was not known to the defendants, as the purchaser, and that they settled with them on the 18th, although the money had not been received. On the 24th or 2olh of the month, one of the plaintiffs called on the defendants, and demanded á return of the money, stating that Ballard had failed, and that an unsuccessful attempt had been made to attach the wheat in New York. This appears to have been the first information the defendants had of the name of the purchaser.
It is contended, on the part of the appellees, that they acted as agents of the appellants, and that having' settled with them before the purchase money for the wheat had been collected from Ballard, that payment Was an advance, Which may be recovered back on failure of the' vendee. Butin this, as in other cases, the agent must act bona fide, and with due care and diligence, and if the record shows that such was not the case, it would be unjust to cast the loss on the appellants.
*170(Decided June 15th, 1860.)We may here remark that we are dealing with a case between commission merchants, and not with rights and duties, as between commission merchants and their principals.
The proof shows that sales of grain in Baltimore are made for cash qn delivery, but that the money is not always paid at, the time, some delay being incident to delivery; but still the delivery does not bar the right to demand cash. One witness stated he had waited for the money as long as a week, as a favor; another had known twenty days to elapse. These appear to have been special cases. Here the appellants did not disclose the name of the purchaser until after the grain had been carried away, and all prospect of recovery gone. Instead of taking the cash, they waited from the 13th until after the 18th, because we find them pursuing the wheat to New York, between the 18lh and 24th, without success. If this be deemed proper care and diligence, we are at a loss to imagine what would be considered negligence. There was consequently no evidence from which the jury could find that these appellees ££ exercised, in all respects, such diligence and caution in said sale and in collecting the proceeds thereof, as a prudent merchant or agent should exercise.”
But, apart from this, the court erred' in submitting that question to the jury at all, it being well settled, that whether due diligence has been observed, is a question to be decided by the court, on facts to be found by the jury. Boyer vs. Turner, 3 H. & J., 285. 6 G. & J., 291. 1 H. & J., 477. 6 G. & J., 63. The judgment must, therefore, be reversed, and, being of opinion that the plaintiffs are not entitled to recover, for want of diligence in collecting the proceeds of sale, a procedendo will not be ordered.
Judgment reversed and no procedendo.