#### Dillard & Coffin Company v. Chapman.

4-3253

Opinion delivered December 18, 1933.

*474 Hughes & Davis, for appellant.

W. B. Scott, for appellee.

Kirby, J.,

(after stating the facts). There was no error committed in refusing to give the requested instruction No. 1 for appellant, as there was no testimony warranting the submission of the question of a guarantee to the jury, and the court properly stated in instruction No. 4, given on its own motion, “There is no question of guarantee in this lawsuit.”

The whole question is one of fact as to the contract or agreement about the sale of the cotton when it was delivered by the appellees to the appellant; and the jury was warranted in finding that appellant was instructed that it might hold the cotton for a rise, but, if the price should go down, they must sell it while the price was still high enough to realize the amount of money which had been advanced thereon by the cotton factors; and, also, that they violated their instructions, and did not make the disposition of the cotton as directed, and were not entitled to recover any further sum for loss in the sale of the cotton than the sum already advanced, and for which they were instructed to sell.

The jury was properly instructed, and the verdict is amply supported by the evidence.

The judgment is affirmed.

Smith and Butler, JJ., dissent.