Walker, J.
Which of these parties should sustain the loss of the proceeds of the sale of the sugars ? Most assuredly the party who was at fault. Which party, then, was at fault ? The plaintiffs, by mistake,wrongfully sent the sugars to defendants to be sold. «Iohn L. Harris wrote to plaintiffs that he had authorized defendants to sell his sugars at 58 cents per pound, delivered in Augusta, no statement being made to defendants of the [13]*13amount of the sugars. Plaintiffs had possession of Harris’ sugars, and under an order from him to send his sugars to defendants, they sent the twenty hogsheads in controversy. They were, with the others, sent by the plaintiffs to be sold and delivered; the defendants did sell and deliver, and immediately proposed to account for the proceeds. In what respect were they at fault? According to Harris’ orders they made the contract of sale, and according to plai/ntiffd statement as to the quantity, they made the delivery. They proposed to account with John L. Harris, and with the plaintiffs, and with John Harris, the true owner. Neither John L. Harris, their supposed principal, nor the plaintiffs, who had sent them the sugars, nor John Harris, the real owner, would receive the money.
Samples of each hogshead were to be sent by the plaintiffs, and the contract of sale was to be made by the samples sent. Plaintiffs sent ninety-five samples, and when notified of the making of the contract of sale, sent the same number of hogsheads, which included the twenty in controversy. Under these circumstances, the making of the sale by defendants could not be considered, as against the plaintiffs, a wrong.
It was urged that defendants were at fault in not learning from John L. Harris how many hogsheads he proposed to sell. But this was a matter of indifference to them. They were commission merchants, and of course were willing to sell whatever amount he might have sent to them for that purpose.
Defendants sold the sugars, and tendered the proceeds, in Confederate States Treasury notes, for which the sale had been made by direction, to the plaintiffs, who. refused to take it, claiming the sugars instead / and the question then with them was what they should do with the proceeds. The sale “ by direction ” had been made for the Confederate notes, which notes were in the hands of defendants, and rapidly depreciating; and it was not surprising that the defendants should be anxious to relieve themselves from liability on [14]*14account of this fund. They offered to pay it to anybody that they thought had any color of right to receive it, but no one would take it. Finding they could not pay it to any one authorized to receive it, they “ deposited the amount to their credit in bank, notifying the plaintiffs that it was subject to their order od any ¿¿me.” Here, it is insisted, the defendants committed a fatal error. Judge Stephens, who argued this case the second time for plaintiffs, seemed willing to admit that up to this period the plaintiffs were altogether at fault, and defendants were blameless. But he insisted, as had our learned brother Gould at the preceding Term, that defendants, by making a general and not a special deposit “ to the credit of the plaintiffs,” and by not keeping “the identical money tendered separate from all other, and marked as the plaintiffs’,” made themselves the debtors of the plaintiffs for the amount; in other words, that this deposit, made under those circumstances, was a conversion of the bills to their own use, and they must account for the value of the notes at the time of the tender; and such was the view taken by the learned Judge who presided on the trial. Let us examine this view of the case, as well as the authorities relied upon to sustain it.
On the first argument, two cases were read to support this view of the question: Robinson, Clerk, vs. Ward, Gent., etc., 2 C. & P. 59 (12 E. C. L. R. 449), and Phillips, Ex’r., vs. Lamar, Sheriff, 27 Ga. R. 228. The case first cited was where a Solicitor received, on the 21st August, 1824, £5300, out of which he was to pay certain incidental expenses, and place the residue in the funds. The defendant, previously to the 10th September, paid the identical notes received, to the credit of his private account, at his banker’s; the bank paid during the 11th, but never paid after that. The question was, which party should suffer by the failure of the bank, the depositary. Under these facts, the Court sáys: “The defendant should have paid this money into a banker’s hands, by opening a new account in his own name, 1 for the credit of Robinson’s estate,’ and so to ear-mark the money [15]*15as belonging to that estate; thus it would have been kept separate. But if the person having the money mixes it with his own, he thereby makes himself personally debtor to the estate. Here the defendant has mixed this money with his own, by paying it to the credit of his private account at his bankers; and he is, therefore, liable to this action.” This case, doubtless, controlled the judgment of the Court below, for in his charge to the jury he says: “But having been used by defendants as their own, by being deposited to their credit, they must abide by the depreciation, and be liable for the value of the Confederate notes at the .time of the tender.” The facts of the two cases are by no means similar. In the case cited, an attorney received money to be invested in the funds, and between the time of its receipt and investment he deposited it with his banker, in his own name, and the hcmlcer failed within a few days after the deposit. In the case at bar, the factor had received the property of his principad, tendered it to him repeatedly, and being unable to got him to receive it, placed it with a safe depositary, subject to the order of the plaintiffs at any time. Plaintiffs refused the notes tendered, to which they were entitled, and claimed the sugars instead, to which they were not entitled. The defendants made the deposit in a place where the funds were always accessible to the plaintiffs; for there has not been a day, from the date of the tender to the present time, when the plaintiffs could not have obtained the notes if they had desired to do so. The difficulty about the matter was, that the notes were precisely what the plaintiffs did not want; all the time they wore “ claiming the sugars instead.” If the bank in which the notes were deposited had failed, and plaintiffs had sued defendants to recover their value, then perhaps, the principle of Ward and Hobinson might be nearer applicable to the case. Under the existing facts, the case is not in point. The case in 27 Ga. was where a Sheriff had collected money on an execution for a plaintiff, and instead of making the plaintiff, or his attorney, the depositary of the money, as the Court seemed to think he ought to [16]*16have done, deposited it in the Manufacturers’ and Mechanics’ Rank of Columbus, which failed some two months thereafter without paying said deposit. In that case, the Court held that: “If a Sheriff collect money, and of his own accord deposits the money in a bank which fails, he is liable to respond to the plaintiff.” It is a sufficient reply, that in the ease at bar there is no question arising out of the failure of the depositary. The proceeds of the sale of the sugars are, and all the time have been, subject to the order of the plaintiffs.
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Walker, J.
Which of these parties should sustain the loss of the proceeds of the sale of the sugars ? Most assuredly the party who was at fault. Which party, then, was at fault ? The plaintiffs, by mistake,wrongfully sent the sugars to defendants to be sold. «Iohn L. Harris wrote to plaintiffs that he had authorized defendants to sell his sugars at 58 cents per pound, delivered in Augusta, no statement being made to defendants of the [13]*13amount of the sugars. Plaintiffs had possession of Harris’ sugars, and under an order from him to send his sugars to defendants, they sent the twenty hogsheads in controversy. They were, with the others, sent by the plaintiffs to be sold and delivered; the defendants did sell and deliver, and immediately proposed to account for the proceeds. In what respect were they at fault? According to Harris’ orders they made the contract of sale, and according to plai/ntiffd statement as to the quantity, they made the delivery. They proposed to account with John L. Harris, and with the plaintiffs, and with John Harris, the true owner. Neither John L. Harris, their supposed principal, nor the plaintiffs, who had sent them the sugars, nor John Harris, the real owner, would receive the money.
Samples of each hogshead were to be sent by the plaintiffs, and the contract of sale was to be made by the samples sent. Plaintiffs sent ninety-five samples, and when notified of the making of the contract of sale, sent the same number of hogsheads, which included the twenty in controversy. Under these circumstances, the making of the sale by defendants could not be considered, as against the plaintiffs, a wrong.
It was urged that defendants were at fault in not learning from John L. Harris how many hogsheads he proposed to sell. But this was a matter of indifference to them. They were commission merchants, and of course were willing to sell whatever amount he might have sent to them for that purpose.
Defendants sold the sugars, and tendered the proceeds, in Confederate States Treasury notes, for which the sale had been made by direction, to the plaintiffs, who. refused to take it, claiming the sugars instead / and the question then with them was what they should do with the proceeds. The sale “ by direction ” had been made for the Confederate notes, which notes were in the hands of defendants, and rapidly depreciating; and it was not surprising that the defendants should be anxious to relieve themselves from liability on [14]*14account of this fund. They offered to pay it to anybody that they thought had any color of right to receive it, but no one would take it. Finding they could not pay it to any one authorized to receive it, they “ deposited the amount to their credit in bank, notifying the plaintiffs that it was subject to their order od any ¿¿me.” Here, it is insisted, the defendants committed a fatal error. Judge Stephens, who argued this case the second time for plaintiffs, seemed willing to admit that up to this period the plaintiffs were altogether at fault, and defendants were blameless. But he insisted, as had our learned brother Gould at the preceding Term, that defendants, by making a general and not a special deposit “ to the credit of the plaintiffs,” and by not keeping “the identical money tendered separate from all other, and marked as the plaintiffs’,” made themselves the debtors of the plaintiffs for the amount; in other words, that this deposit, made under those circumstances, was a conversion of the bills to their own use, and they must account for the value of the notes at the time of the tender; and such was the view taken by the learned Judge who presided on the trial. Let us examine this view of the case, as well as the authorities relied upon to sustain it.
On the first argument, two cases were read to support this view of the question: Robinson, Clerk, vs. Ward, Gent., etc., 2 C. & P. 59 (12 E. C. L. R. 449), and Phillips, Ex’r., vs. Lamar, Sheriff, 27 Ga. R. 228. The case first cited was where a Solicitor received, on the 21st August, 1824, £5300, out of which he was to pay certain incidental expenses, and place the residue in the funds. The defendant, previously to the 10th September, paid the identical notes received, to the credit of his private account, at his banker’s; the bank paid during the 11th, but never paid after that. The question was, which party should suffer by the failure of the bank, the depositary. Under these facts, the Court sáys: “The defendant should have paid this money into a banker’s hands, by opening a new account in his own name, 1 for the credit of Robinson’s estate,’ and so to ear-mark the money [15]*15as belonging to that estate; thus it would have been kept separate. But if the person having the money mixes it with his own, he thereby makes himself personally debtor to the estate. Here the defendant has mixed this money with his own, by paying it to the credit of his private account at his bankers; and he is, therefore, liable to this action.” This case, doubtless, controlled the judgment of the Court below, for in his charge to the jury he says: “But having been used by defendants as their own, by being deposited to their credit, they must abide by the depreciation, and be liable for the value of the Confederate notes at the .time of the tender.” The facts of the two cases are by no means similar. In the case cited, an attorney received money to be invested in the funds, and between the time of its receipt and investment he deposited it with his banker, in his own name, and the hcmlcer failed within a few days after the deposit. In the case at bar, the factor had received the property of his principad, tendered it to him repeatedly, and being unable to got him to receive it, placed it with a safe depositary, subject to the order of the plaintiffs at any time. Plaintiffs refused the notes tendered, to which they were entitled, and claimed the sugars instead, to which they were not entitled. The defendants made the deposit in a place where the funds were always accessible to the plaintiffs; for there has not been a day, from the date of the tender to the present time, when the plaintiffs could not have obtained the notes if they had desired to do so. The difficulty about the matter was, that the notes were precisely what the plaintiffs did not want; all the time they wore “ claiming the sugars instead.” If the bank in which the notes were deposited had failed, and plaintiffs had sued defendants to recover their value, then perhaps, the principle of Ward and Hobinson might be nearer applicable to the case. Under the existing facts, the case is not in point. The case in 27 Ga. was where a Sheriff had collected money on an execution for a plaintiff, and instead of making the plaintiff, or his attorney, the depositary of the money, as the Court seemed to think he ought to [16]*16have done, deposited it in the Manufacturers’ and Mechanics’ Rank of Columbus, which failed some two months thereafter without paying said deposit. In that case, the Court held that: “If a Sheriff collect money, and of his own accord deposits the money in a bank which fails, he is liable to respond to the plaintiff.” It is a sufficient reply, that in the ease at bar there is no question arising out of the failure of the depositary. The proceeds of the sale of the sugars are, and all the time have been, subject to the order of the plaintiffs.
On the second argument of the case, at the December Term, Judge Stephens relied.very confidently upon the case of the Fulton Bank of New York vs. The Marine Bank of Chicago, reported in 2 Wallace S. C. R. I have not the book before me, but think I recollect the principal facts of the case and the point decided. Early in 1862, the bank notes circulating in Chicago were some five or six cents below par, and the Marine Bank issued a notice to its customers, that it could not make collections and remittances as theretofore, unless the customers would receive the depreciated Illinois currency. Subsequent to this notice, the Fulton Bank sent to the Marine Bank, for collection, notes amounting to upwards of $3,000. In May, 1862, the notes were paid in Illinois currency, then at a discount of ten per cent. 2sTo notice was given of the collections. In answer to a letter of inquiry from the Fulton Bank as to how its account stood, the Marine Bank answered there was due the amount of the collections. By the end of the year, Illinois currency was worth only fifty cents on the dollar. The Fulton Bank then demanded payment of its claim, and the Marine Bank proposed to pay in the depreciated currency — currency which had depreciated forty per cent, from the time of its reception, until the proposed payment — the tender of payment. It appeared that the currency collected by the Marine Bank was credited on the books to the Fulton Bank, and went into the funds of the Bauk, and was used in its daily business the same as any other currency on hand. FTo tender was ever made of the currency received, to the Fulton Bank, [17]*17until the settlement was demanded at the end of the year. Under this state of affairs, the Court held that the Marine Bank, having in May received the currency, and used it as it did its other funds; credited the Eulton Bank with the amount on its books, and never having tendered the currency until it had depreciated from ten to fifty per cent.; that the Marine Bank thereby made itself the debtor of the Eulton Bank, and liable to pay the value of the Illinois currency at the time of its reception. This is a very different case from the one at bar. Suppose that, instead of keeping and using money as it did the other funds of the Bank, the Marine Bank had immediately notified the Eulton Bank of the collection, and tendered in payment the currency received, and the Eulton Bank had refused to receive it, although it had authorized the reception of the currency in payment of the claims; suppose that the Marine Bank had then deposited the amount in some other safé bank, and notified the Fulton Bank that the money was so deposited, and was subject to its order at any time; and after this the Eulton Bank, all the time refusing to receive the currency, had sued the Marine Bank for the value of that identical currency which had been tendered and refused, and which was ever subject to its order. Suppose all these facts to have appeared, is there anything in the case which would raise a presumption that the Court would have hold the Marine Bank liable ? I think not. And yet, to make this case analagous to the one at bar, all these supposed facts would have to appeal’. I admit, that some of the language used by that Court in delivering the opinion, would seem to be in favor of the position assumed by counsel for the plaintiffs, yet the language of the Court must be considered in relation to the facts of the case, and thus show a case altogether different from the one at bar.
The question here is who shall suffer the depreciation of these notes, which belonged to plaintiffs — were tendered to them at the proper time, and refused. This is not the ordinary case of a debtor, making a tender of money to his [18]*18creditor ; but that of a factor, with effects in his hands belonging to his principal. Of course, if a debtor make a tender of money to his creditor, which is refused, the effect is to protect the debtor from interest and costs ; the debt remains still due, and the debtor must keep in readiness to pay whenever the creditor will receive. But a factor is not an insurer; he is bound to exercise reasonable care, skill and diligence in taking care of the effects of his principal, and when he does this he is not liable. Did defendants exercise such care in this case ? “ The amount ” was deposited in a solvent bank, “subject to the order of the plaintiffs, at any time,” and when sued, defendants brought the money into Court. The defendants, all the while, were trying to pay the Confederate notes, and the plaintiffs as earnestly trying to get something else, until the notes became utterly worthless. In March, when the notes were tendered and refused, the plaintiffs were “ claiming the sugars insteadand to the October Term of the Court thereafter, they sued defendants, not to recover the Confederate notes, or their value, but to recover damages for the wrongful conversion of the sugars. On the final trial, however, in April, 1866, when they find that they must fail in their action of Trover, the plaintiffs ratify the sale, and ask that defendants pay the value of the Confederate notes at the date of the tender. They admit, that the notes were tendered at the proper time, and the proper amount, which amount was subject to their order at any time; but inasmuch as the deposit was in the defendants’ name, they must now pay what .was the value of the notes at the time. The money was in bank, subject to the order of the plaintiffs, and “ the presumption is that a check would have been paid if diligently presented.” Per Kent. J. — Cruger vs. Armstrong, 3 J.C.9. Marzetti vs. Williams, 1 B. & Ad. 415 (20 E. C. L. R. 541.) If the money which has been tendered becomes, after a refusal to accept thereof, current at a less value than it was current when the tender was made, the party who refused to accept the money must bear the loss. 9 Bac. Abr. 317; Bouv. Ed.
[19]*19This loss was not occasioned by any negligence of the defendants, or of the depository, but from an inherent defect of the property itself. In effect, plaintiffs neglected their property until it died of disease, the seeds of which were in it at the time it was received by defendants. Eor such a loss plaintiffs ask defendants to account. This is the whole case, and wo think defendants ought not to be made to account. The Court below held defendants to be liable, and in so holding Judge Lumpkin and I think he erred.
Judgment reversed.