
    Stephen R. Hosmer v. Baer and Fox.
    In a sale of corn for 68 cents per bushel, when prime corn was selling at 75 cents per bushel, the purchaser is not presumed to have inferred from the price paid that the corn was damaged. He paid a sound price for an article of secondary quality; but was entitled to a sound article.
    APPEAL by plaintiff from the Fifth District Court of New Oi'leans. Buchanan, J.
    
      L. C. Duncan, for appellant.
    
      J. and H. H. Slraidbridge, for appellees.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims the balance of the price of a lot of corn sold to the defendants by his factors, Leland & Mason.

The defendants admit the purchase as alleged, but aver that they purchased the corn as sound, and paid $1,000 on account of it; that after receiving a portion of it, they found the remainder damaged and unfit for use; in consequence of which they called upon Lelancl & Mason to take back the corn not disposed of, and to rescind the sale; and that, on the refusal of these parties to take back the corn, it was sold on their account at public auction. They allege that they sustained $500 damages, which they claim in reconvention. They further aver, that Leland Mason sold the corn as their own, withoxxt disclosing their principals or intimating that they had any. They pray that those parties may be cited, and for judgment against them and the plaintiff in solido.

Leland & Mason and the plaintiff filed a general denial in answer to the claim in reconvention. Leland & Mason further averred that they acted in the sale as the agents of the plaintiff, and sold the corn at a lower rate than the current market value of sound corn; and that the same was sold to the defendant as being damaged and of inferior quality.

The demand of the plaintiff was rejected, and the claim of the defendants in reconventioñ sustained against the plaintiff, alone, to the amount of $167 84. The plaintiff and the defendants have appealed.

The appeal of the defendants was taken by motion in open court. But as they have given no bond to Leland <$• Mason, these parties are not before us, and our enquiries must be confined to the respective claims of the original parties to the suit. So far as they are concerned, we are of opinion that there is no error in the judgment. The only fact adduced by the plaintiff, in support of his allegation that .the corn was sold to the defendants as being damaged and of inferior quality, is, .that he sold it for 68 cents per bushel when prime corn was selling at 75 cents. This may show that the corn was not a prime lot; but the defendants were not to infer from the price paid that it was damaged. They paid a so.und price for a secondary quality, and were entitled to a sound article.

The judgment is therefore affirmed, with costs.  