On Rehearing.
(June 30, 1904.)
BREAUX, C. J.Plaintiff and appellant and defendant and appellee have presented petitions for rehearing, and each complains of the decree heretofore rendered, and urges a number of grounds of objections.
We take up those of plaintiff and appellant for decision.
Were we to adopt the theory of plaintiff and appellant, viz., that we should make the *497•difference between tbe costs of feeding tbe ■cane to tbe carrier by band and from tbe cars under tbe old method, and not the value of the cane, the basis and measure of damages, we would change the issues, and adopt another basis or measure of damages than that argued in the district court and decided by that court.
Besides, the record informs us that tbe appellee and defendant had made changes at his mill and sugar house in order to be in readiness to use the cars bought by plaintiff in taking off his crop. We think that in view of that fact the measure of damages should be the loss of the cane as heretofore ■decided. ' The changes at the mill and sugar house were occasioned by plaintiff’s promise that he would deliver the cars in time.
These changes of improvements had taken some time, and required some expenditure •of money.
Defendant had a right to expect the cars in question in time to take off his crop. It was scarcely to be expected of him that he would take out the improvement, and return "to the old way, in view of the fact that he was not warned by plaintiff of tbe delay which resulted afterward in the loss of a ■considerable part of his cane. Plaintiff and .appellant had bound itself to deliver these cars within a certain time. Plaintiff and .appellant must have known that the sugar crop must be taken off within a certain time, ■or that loss would be the result.
We take it that that which is clearly suggested by able and learned counsel after the fact, and which has now some appearance of reason, was not apparently reasonable pri- or to the fact.
Plaintiff now thinks that defendant should have resorted to efforts to protect himself-from injurious consequences, which does not appear to us defendant can, with great reason, be held to.
“Reasonable effort and moderate expenses” are the test in matter of minimizing damages. Here the effort, under the circumstances, would not have been very reasonable. It would have required expense and a change in the improvement the defendant had made, in anticipation of receiving the .cars in time. Besides, it was not for him to foresee that plaintiff would delay as long as it did before sending these cars. He was by that contract kept in expectation that tbe cars would be received. He could scarcely be expected to change front as it were, disregard the contract, and ex mero motu go to work at tearing up things and restoring the old situation of things at the sugar house.
With reference to dismissing defendant’s reconventional demand, as suggested by plaintiff, and the further suggestion to relegate him to another suit under a reservation of his right to claim not for the value of the cane, but the difference between feeding the carrier by hand and feeding it by. cars, we repeat that it appears to us too late to make that change.
The demand in the district court was for the loss of the crop. It cannot very well be changed on appeal. Besides, the damages suffered, after all, was the loss of the crop.
It is not shown that defendant increased the damages, or did not seek to minimize them.
The plea of the want of default is another of plaintiff’s pleas in which we have found no great merit.
As relates to default vel non, plaintiff had no special right to expect that it would be reminded by defendant of its delays in not delivering the cars it had sold. It certainly devolved upon it to slightly bear in mind the promise made to deliver them in the time stipulated.
Moreover, tbe contract was one which, upon the face of the papers, was suggestive of necessity of delivering the cane cars in time to enable defendant to grind his crop of cane. The contract and all the circumstances relieved the defendant from the neces*499sity of putting the plaintiff in default. Plaintiff unquestionably failed to deliver the ears to enable defendant to save his whole crop.
The article of the Code is decisive of the question of the default. The thing “was of such a nature that it could only be done within a certain time.” The putting in legal delay was not a condition precedent to entitle the creditor to damages. Civ. Code, art. 1933.
If the foregoing grounds stated, do not hold good, then in the alternative plaintiff is pleased to urge that the defendant, by accepting the cars without protest, by using them, and requesting further time to settle until after grinding, waived all claims that he (defendant) had.
There was surely no express waiver. The acts and utterances which plaintiff sets up as waiver do not amount to an abandonment of all right to damages. Defendant did for the best under the circumstances. When the cars were delivered he made use of them as hastily as he could. What else was he to do? He would have exposed himself to the charge of not having availed himself of the inviting opportunity offered to save his crop if he had not used these cars. They were sent to be used. Plaintiff can derive no defense from the fact that they were used.
The use, as made, did not lessen plaintiff’s liability growing out of unreasonable delays in shipping them to the defendant.
Able and learned counsel urge with force’ and clearness that it was defendant’s duty to minimize the damages so far as possible. In answer we can only say that this minimizing could best be accomplished by using the cars.
They, we infer, were highly satisfactory appliances in hauling cane.
It follows that the use of these cars at the earliest date passible was not a waiver under the circumstances of this case, nor was it an act which can be construed into an intended abandonment of damages growing out of the unseasonable delivery of the property sold.
One of the objections of plaintiff is well founded. In ascertaining why it is well founded it becomes necessary for us to -state-that plaintiff was the appellant, and defendant and appellee on appeal failed to sustain his judgment.
On appeal we have decided that plaintiff on the main demand is entitled to a judgment for $3,736.30, with 6 per cent, interest thereon from October 11, 1901. Heretofore defendant recovered 'judgment against plaintiff for the sum of $21,000 and 5 per cent, interest from the date of the judgment, subject to $3,736.37 as a credit.
The judgment of defendant against plaintiff on his reconventional demand has been reduced by our original judgment from $21,-000 to $1,400. Defendant failed to sustain his judgment obtained in the district court on his reconventional demand.
It follows that plaintiff is entitled to judgment on the first amount, which has always-been recognized as due, subject to the said $1,400 as a credit, and that to that extent the judgment of the district court is amended.
With reference to costs of appeal, they should be paid by appellee. Costs follow judgment. The judgment was amended on appeal at defendant’s costs.
We take up for consideration defendant and appellee’s application for an increase of the amount allowed in our original decree.
The points on the part of each side to this controversy have been ably and forcibly urged by respective counsel.
The defendant and appellee stoutly objects to the amount allowed heretofore as damages, to wit, $1,400. He thinks it should be much larger, for his losses, he says, were serious; and doubtless they were.
It remains, however, that the onus of proof was with defendant and appellee on bis re-*501conventional demand. This court has taken a decided position heretofore in regard to the amount of damages. The able argument on rehearing has not resulted in changing the court’s conclusion.
The defendant himself and his engineer made statements in regard to the capacity of the sugar mill and factory. They did not qualify those statements in any respect. They were weighed and passed upon by the court as made; that is, the statements of defendant and his engineer were made without qualification and modification of any kind.
Nothing was added to or taken from the force of these direct separate statements under oath regarding the capacity of the mill and factory. It should be borne in mind that they were the sworn statements of defendant and his engineer.
We do not think that we would be justified in going beyond this, and in assuming that these statements related only to the maximum capacity of the mill under ideal conditions, expressly arranged for the purposes of making a test, as was contended by defendant.
While we do not question the verity of the statements, it remains that this ideal condition arranged for a test is not shown by the testimony. The daily capacity for the stated number of days which the mill worked was added up,' and by that means a result was arrived at.
We are constrained, under the rules of evidence, which we think should govern, to adhere to the capacity sworn to heretofore as indicating the daily output during the number of days stated; not more, not less.
Were we to take other testimony as a basis, it would remain as a fact that defendant would recover for a larger amount of damages than shown by his own testimony. This we cannot do. We must affirm our decree. We have no other alternative left
For reasons assigned it is ordered, adjudged, and decreed that plaintiff have and recover judgment of the defendant for the sum of $3,736.37, with 6 per cent, per annum interest thereon from October 11, 1901, until paid, subject to a credit of $1,400, with 5-per cent, from the 17th day of October, 1902; and that defendant and appellee pay the costs-of appeal.
With the amendment as above, our judgment before rendered is reinstated and made the judgment of the court.
Appellee to pay costs of appeal.
PROVOSTY, J., dissents.