delivered the opinion of the court. This is an action for the price of a boat load of corn, sold and delivered to the defendant's testator in his life time. The general issue and payment, are pleaded.

The cause as submitted to a jury who found for the plaintiff, time defendant moved for a new trial, which was refused, and judgment given on the verdict. He appealed.

We think the judge erred in not submitting the cause to another jury. The whole matter in dispute is in relation to the validity of the payment made by the defendant's testator. The plaintiff, on shipping the corn from Kentucky, directed the former, on receipt of it, to "place the funds in New-Orleans as soon as possible," that his business there required this remittance, and that he wished the money placed to his credit in the United States branch bank in that city, and to address a letter to *514him, in New-Orleans, to the care of John Brandt & co. On the delivery of the corn. Baldwin forwarded the money by a certain John Brandt, with directions to place it in the branch bank. He, instead of doing so, converted the money to his own use, and soon after failed. The time the funds were entrusted to him he was a man in good credit, and trustworthy, and had just levied an attachment in Point Coupée on forty negroes, for a debt due him by some person in Tennessee.

On these facts, which all appear on record, we think the jury erred. The plaintiff, in directing the money to be remitted to New-Orleans, necessarily took on himself the risk of sending it there. The only question then is, whether a judicious and prudent mode of forwarding it, was resorted to. The jury, by their verdict, seem to have negatived the fact, but being unable to find any thing in the evidence, which will permit us to concur with them, we think the cause ought to be remanded for a new trial.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, that the *515cause be remanded for a new trial, and that the appellee pay the costs of the appeal.