
    No. 786.
    David S. Rhea v. Frederick Otto.
    When goods, produce, or other objects aro bold m the lump, they are at the vtoir hi the purchaser from the date of tile Bale, but'vvh.pn sol'l by tvoiftb* m* rn^iixure, they are at the ri«k of Gip '-elier until they avowoiithod or C. C.
    A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J.
    
    
      Dunn cC Herron, for pdaintifl.
    
      Fuqua <1 KmcTearhocker,. for defendant.
   Labauve, J.

The plaintiff claims of the. defendant a balance of §5,475, remaining due on the sum of §8,(175, price, of 95,000 pounds of seed cotton, sold and delivered to said defendant in the fall of 1863, at 8te cents per pound in the seed.

The answer contains a general denial, and an admission that defendant in the fall of 1863, purchased cotton of plaintiff through his authorized agent, OliviaL. Wooward, but that ho paid in full for'the same.

The Court, after hearing the evidence, gave judgment for defendanl, and the plaintiff appealed.

The only question in this case, is whether the cotton of plaintiff, after the agreement of sale, was at the risk of the plaintiff or the defendant. If sold in lump, it was at the risk of the purchaser; but if otherwise sold by weight, it remained at the risk of the seller. O. C. Art. 2433. The evidence shows, and the plaintiff’s petition admits, that it was sold at so many cents per pound.

Nothing shows that the cotton was at the risk of the buyer until weighed; some lots were weighed and delivered, and paid foy, as we are informed by the evidence, but there is no proof of any other cotton weighed and delivered.

The able opinion delivered by our learned brother below, and the testimony in the case, satisfy us that plaintiff has failed to make out a clear case.

We are of opinion that the District Judge gave a correct judgment, under the law and facts of the case, and for the reasons assigned by him his judgment must be affirmed.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.  