
    Otter & Co. v. Moses Greenwald.
    Principa! and Surety — Liability of Commission Merchant.
    The evidence was held Insufficient to authorize a judgment for plaintiff in an action against a commission merchant for failure to sell molasses consigned to him for the prevailing market price.
    APPEAL PROM BARREN CIRCUIT COURT.
    January 20, 1874.
    
      
      Porter, for appellants.
    
    
      W. H. Botts, for appellee.
    
   Opinion by

Judge Pryor:

There is no eivdence in this case upon which to' base a judgment against the appellants. It is in proof that a good article of molasses was worth 75 cents per gallon at Louisville when the appellee forwarded his to appellants to be sold by them. This fact is admitted in the letter of appellants, as well as proven, by two witnesses. It is shown, however, by a witness or witnesses who were uncontra-dicted in any way, that the molasses was sold by these merchants for the best price that could be obtained in the market, and the cause of the failure to get more originated from the character of the packages or barrels in which the molasses was shipped. Oil barrels, wine casks, whisky barrels, etc., were used for the purpose and the proof is that there was much difficulty in selling it at any price. It was in the power of appellee to have shown otherwise if these statements were not true. This he had failed to do, and the evidence of appellants being uncontradicted in any particular, the judgment should have been for them.

The judgment of the court below is therefore reversed and cause remanded with directions to award to the appellants a new trial, and for further proceedings consistent with this opinion.  