
    5317.
    (Court of Appeal, Parish of Orleans.)
    H. ABRAHAM & CO. vs. S. G. STERN.
    If the debt results from an agency the prescription is ten. years.
    Appeal from the Civil District Court, Division “ C. ”
    Hall, Monroe & Lemann, for plaintiff and appellee.
    Charles Rosen, Titehe & Rogers, for defendant and appellant.
   ST. PAUL, J.

Plaintiff's are cotton brokers, buying and selling on commission. This is an action to recover a balance claimed to be due upon an account growing out of the purchase and resale, for account of defendant, of certain cotton for future delivery.

The defense is a general denial.

The district judge, in an able opinion, thus disposed of the issues:

“This is an action to recover a balance due resulting from certain future transactions on the floor of the Cotton Exchange, in this city.
“It appears that on telegraphic orders from the defendant, the plaintiff made the purchases as his agents, and the contracts were so made as to be legal under our jurisprudence which in all the cases before the courts have been held to be ehforcible.
‘‘ The series of transactions are shown by the telegram: sent by defendant to plaintiff, by the separate items set forth lin the book -slips on file, by the various letters and claims made by the plaintiff, by the admissions of the defendant on the stand in this court.
“It is true that' our law is that the plaintiff must make his case certain; to make it probable is not enough, but in this case, I feel no doubt that the purchases were made in pursuance to orders from the defendant, and under the -rules -of the Cotton Exchange-; that he did not repudiate them When his memory was fresh, ¡although he was notified of them, and does not now positively deny that they existed. He simply fails now to remember- them land -says he does not owe the amount.
“These various transactions resulted in the -loss claimed, when closed and under the rules of the Cotton Exchange, which were well known to the defendant, he had had such dealings before and knew the result -of his failure to put up the margins, and even avers that he ordered the de'al-s to be closed -out when the margins‘were exhausted.
“A consideration of all facts presented convinces me with reasonable certainty that plaintiff is entitled to judgment as prayed for.
“The plea of prescription is overruled. If the debt results from an agency the prescription is 10 years.
“If the debt result from the payment by plaintiff of an- -obligation diu;e by defendant and plaintiff, jointly, the prescription is likewise one of ten years. ’ ’

46 Ann. 1208.

An examination of the record convinces us -that the transactions have been proved with all but mathema-ti©al certainty, and no such degree of proof is required.

May 15, 1911.

As to the plea of prescription (3 and 5 years.) it was also properly overruled. The relations between plaintiff and defendant, were those of agent and principal, Conner vs. Robertson, 37 An. 814, and accounts of this nature are prescribed only by the lapse of ten years.

The judgment appealed from is icorrect and it is hereby affirmed.  