The plaintiffs, residents of Louisville, Kentucky, allege that about the 1st of February, 1861, they sold and delivered to Col-*262ton & Baldwin, of New Orleans, goods, wares and merchandise of the value of four hundred and thirty-nine dollars and thirty cents. They aver that at the time the goods were furnished, J. S.-Simmonds, one of the defendants, was in fact a copartner in the firm of Colton & Baldwin, or the sole owner of the stock of goods then in the store of Colton & Baldwin; that the pretended sale and transfer, some time previous of Simmonds’ interest in the firm of Colton & Baldwin, was a fraud and simulation; that the goods sold by plaintiffs to Colton & Baldwin inured to the use and benefit of Simmonds. The defendants filed separate, answers, containing a general denial. Judgment was rendered against the defendants in solido, and Simmonds alone has appealed.

The petition recites that plaintiffs drew a draft on Colton & Baldwin for the amount or value of the goods sold them, which they accepted, and that the draft is annexed to and made a part of the petition. We do not find such a draft copied in the record, nor do we find evidence of any kind, showing a sale and delivery of goods by plaintiffs to the defendants. Erom the transcript before us, it is clear that the plaintiffs have failed to make out their case.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, that this ease be dismissed' as of nonsuit.