
    Kinney v. Crane.
    An agent who sells goods or property of his principal and takes a note to his own order, which is protested at maturity, and he uses no legal means, or proper diligence to enforce or secure payment, he makes the debt his own, and is liable to his principal for its amount. — i L. 26, find cases there noted.
    Appeal from the court of the first district.
    This is a suit by the plaintiff against his agent employed in the sale of coaches, carriages, &c. An account is duly made out charging the agent with the items and amount of the property sold, and also crediting him with sundry items for charges paid and moneys accounted for, &c. There is one disputed item. The defendant tenders to his principal a note for $475, given by Dr. J. M. Mackie for the price of a gig, which the defendant avers he sold and delivered, as he would his own property, supposing he was acting for the best interest of the plaintiff, and is not responsible himself for the payment of said note. He denies that he was guilty of any negligence or want of diligence in endeavoring to collect it; and tenders the note, and says it is in full of any balance otherwise standing against him.
    The case was submitted on the issue of the liability of the defendant to pay the amount of Dr. Mackie’s note; he having failed to enforce the claim against the doctor after the maturity of the note, and while the gig was still in his possession. The note was due the 1st January, 1836; and the plaintiff’s account and demand for settlement and payment with the defendant was rendered the 1st January, 1838.
    There was a small balance claimed for commissions which was contested. The district judge disallowed them, and decided that the defendant acted negligently in his agency, by not using all legal exertions to secure payment for the price of the gig, when he might have seized it in the hands of the vendee, after the note was over due and unpaid.
    [418] There was judgment against the defendant, and he appealed.
    
      G. B, Bunecm for the plaintiff.
    
      Preston contra.
   Morphy, J.

delivered the opinion of the court.

This is a suit on an open account. The only item about which there is any dispute is a charge made against the defendant for the price of a gig sold by him to one Dr. Mackie for account of the plaintiff, a coach-maker, residing in the city of Newark, New Jersey. The sale was made on the 28th of July, 1835, at a credit of six months, and defendant received Mackie’s note to his own order, which when due was protested for non-payment. It appears that although the gig remained in the vendee’s possession after the maturity of the note, the defendant failed to enforce on it his lien as vendor; and has since used no legal exertions whatever to secure the payment of the price for his principal. Admitting that at the time of the sale ho was justified under the evidence, in selling to Mackie without requiring an indorsor, we fully concur in opinion with the inferior court that the defendant by thus keeping the note for years in his possession without using common diligence to collect it, has made the debt his own and was properly charged with its amount. La. Code, art. 2972 ; Story on Agency, p. 189.

The judgment of the district court is therefore affirmed, with costs.  