delivered the opinion of the court.
Plaintiffs claim heavy damages for the non-delivery of one hundred thousand bushels of coal, which they allege, defendant, in Cincinnati, undertook, and agreed to ship to them, in New-Orleans. For this coal, they were to pay at the rate of twenty-five cents per bushel, to them delivered; on or about thirty days after such delivery, in their joint and several promissory notes. They were, moreover, to make arrangements with such agent as defendant should appoint for the payment of all moneys received from the sale of any part of the coal, previous to the expiration of the thirty days, which sums, when paid, were to be credited on their notes; and defendant bound himself in the penalty of two thousand five hundred dollars, for the delivery of the coal, in the way of damages. Plaintiffs allege, that in consequence of this contract, they came to New-Orleans, opened a counting house, and at great expense, made the necessary prepara*583tions for the sale of so large a quantity of coal, but that the high price of the article induced defendant, through his agent, to refuse to deliver any part of the coal stipulated for, although they had tendered bond and security as required , J J . 1 by said agent,and had in all other respects complied with their contract. The defendant claims damages by way of reconvention, averring that the plaintiffs failed to make satisfactory arrangements with his agent in New-Orleans, for the payment of the moneys received from the sale of the coal, during the thirty days after delivery, and have by such failure, to comply with their contract and receive the coal, occasioned to him great loss and damages. The judge below gave judgement for defendant in the main action and against him on his plea in reconvention, and decreed that each party should pay one half of the cost. The plaintiffs appealed.
The contract between these parties took place in October, 1837, and the first boat load of coal arrived in this city on or about the 16th December, following. Coal was then selling at a dollar and a half a barrel, and the severity with which the winter had set in, gave room to believe that the price of coal would remain high throughout the season.^ These circumstances have led plaintiffs to suspect that defendant was determined at all events to break his contract, and they ascribe to secret instructions given to his agent with that view, the refusal of the latter to receive the bond they tendered to him, and his requiring the payment to be made in gold and silver; of all this there is no evidence, but if the surmises of the plaintiffs are well founded, the defendant’s bad faith appears to have received its punishment, for on or about the 26th of the same month, a sudden change took place in the weather, and it turned out to be, as the witnesses express it, a warm, winter. The consequence was, a considerable fall in the price of the article, and a heavy loss to defendant. As to the facts of the case, as exhibited by the record, we concur in the view taken of them by the inferior court.
The plaintiffs tendered to Armstrong, defendant’s agent, a person by the name of Dinn, as their security on a bond of *584ten thousand dollars. The individual offered being altogether unknown to Armstrong, he addressed a note to plaintiffs requesting to know, to whom he might refer for information about him: he was referred by plaintiffs to a Mr. Woolsey, of the firm of Woolsey & Monlagne. The account given of Dinn by the person referred to, justified, we think, Armstrong in rejecting him as security. It was, “that Dinn kept a seed store, and was an honest man, but he did not consider him sufficient for the amount of the bond; that he had very little property, if any, &c. It is true, (hat on the trial Dinn being brought up as a witness for plaintiffs, gave a very different account of himself, and stated that he would have been fully able to pay the ten thousand dollars had his principals made default; admitting this tobe strictly true, defendant’s agent was without any knowledge of his true circumstances, as disclosed by himself in court, and surely the plaintiffs cannot complain that Armstrong suffered himself to be governed in his opinion of Dinn’s solvency, by the very person to whom they had referred him. There is no evidence that before bringingthis suit, the plaintiffs gave Armstrong any additional information as to the means of their surety. Thus although from Dinn’s testimony, the plaintiffs had offered in him a sufficient surety, yet Armstrong was justified in rejecting him, from the very information afforded him by plaintiffs themselves; under such circumstances, we think that the judgment appealed should remain undisturbed.
It is, therefore, affirmed, with costs.