
    No. 2328.
    O. B. Graham & Co. v. Hemard & Hattier.
    A defendant is essentially a plaintiff when ho malees a reconventional demand. Xlie burden of proving the demand in roconvontion, therefore, falls exclusively on the defendant.
    APPEAL from the Sixth District Court, parish of Orleans.
    
      Oooley, J. Ilornor é Benedict, for plaintiffs and appellants.
    
      B. II. Mo Caleb and B. Wooldridge, for defendants and appellees.
   I-Iowe, J.

This is an action for a balance of account alleged to be due by defendants for advances, etc., made by plaintiffs on cotton shipped through their house to Liverpool by defendants.

There does not seem to be any dispute as to the amount of advances and charges, but the contest is over the reconventional demand of defendants, which, if sustained, brings the plaintiffs in debt. There was judgment in the lower court in favor of defendants for $1129 06, and plaintiffs have appealed.

The reconventional demand is founded upon the allegation that defendants shipped though plaintiffs’ house to Liverpool, per “Antonia,” sixty bales of cotton; that the plaintiffs were instructed and agreed to sell it as soon as it should arrive; that if so sold in February, 1866, it would have brought nineteen and a half pence per pound; that in violation of their duty and agreement the plaintiffs did not sell this cotton until August and September, 1866, and at much lower prices, and thus caused great loss and damage to defendants.

It is of course incumbent on defendants, who are to all intents and purposes plaintiffs in reconvention, to establish with legal certainty their claim for damages. A careful examination of the record will show that they have'not done this. On the contrary, the impression produced by the testimony is, that the sixty bales of cotton in question were shipped through plaintiffs’ firm under an arrangement which left, them a sound discretion as to time of sale, and that such discretion has-not been abused.

It is therefore ordered that the judgment appealed from be avoided and reversed, and the reconventional demand of defendants dismissed. It is further ordered that the plaintiff's, O. B. Graham & Co., Iiavejudgment as prayed for against Charles Hemard and Victor Hattier,. composing the firm of Hemard & Hattier, defendants herein in solido, for the sum of $4683 54, with legal interest from December 1,1865, with costs of both courts.

Rehearing refused.  