delivered the opinion of the court.
The evidence tended clearly to show that-the plaintiff had shipped five bales of cotton from Memphis to the defendant, *256a commission merchant at St. Louis, to be sold on commission and for his account; that the receipt and sale of the cotton were acknowledged by letter to the plaintiff, and judgment was rendered for the plaintiff for the amount of the proceeds of the sale, deducting the amount of the defendant’s counter claim which was admitted.
The answer admitted the shipment of the cotton by the plaintiff by bill of lading in his name, but alleged that the property was purchased with the money of the defendant’s firm and belonged to him. The evidence wholly failed to establish this fact.
The defendant excepted to the exclusion of the bill of lading offered in evidence by him, which appeared to have been made out in the name of the “Union Warehouse,” and signed by “ J. E. Burdeau, agent.” Thereupon the defendant asked leave to amend his answer in respect of the statement contained in it that the cotton was shipped in the name of the plaintiff, and leave was denied. There was no substantial error in this. The bill of lading had no tendency to prove that the cotton belonged to the defendant rather than to the plaintiff.
Certain letters from a member of defendant’s firm were offered in evidence by the defendant and excluded. These letters were clearly not admissible in -evidence against the plaintiff; they were’wholly res inter alios acta, and no part of the res gestee. The defendant also offered to prove the statements of one Bulkely to the effect that he was himself the owner of the cotton, and offered in evidence a letter from the plaintiff which contained an admission that the cotton really belonged to a third party. This evidence was excluded : there was no error in excluding this evidence. The statements of Bulkely were certainly not admissible; he might himself be a witness, and as between the plaintiff and the defendant it was not material that the property really belonged to some unknown third party. The defendant was bound to account to the plaintiff, from whom he had received the goods for sale, until the true owner appeared and estab*257lished bis right to the proceeds. This evidence had no tendency to show that the cotton belonged to the defendant, and there was no proof of that fact.
The instruction given for the plaintiff appears to have been entirely correct, and the refusal of the defendant’s instruction was immaterial.
Judgment affirmed.
The other judges concur.