On Rehearing.
MONROE, J.By the order granting the rehearing the present inquiry is “restricted to the question of the quantum of damages-*65to which the defendant may be entitled.” In the opinion heretofore handed down, it was said:
“On all timber that was delivered and not paid for defendant is entitled to the full contract price. On all timber that was not delivered, but that would have been delivered if plaintiff had not prevented the full execution of the contract, defendant is entitled to the full contract price, less whatever further expense it would have had to incur in the execution of the contract.”
Proceeding upon this basis, and considering, in slightly different order, the items which were dealt with in our former opinion, we now find that defendant is entitled to recover as follows, to wit:
(1) Eor 466 logs, averaging 360 feet and containing 167,760 feet of lumber, delivered, at $5.50 per thousand (the contract price).........$ 922 68
(2) Por 2,225 logs, averaging 360 feet and containing 801,000 feet of lumber, collected in booms, at $5.50, less 25 cents for towing, $5.25 per thousand ....................... 4,205 25
(3) Por 1,182 logs, averaging 250 feet and containing 295,500 feet of lumber, collected, in Commeaux canal, at $5.50, less 25 cents for towing, $5.25 per thousand........ 1,551 37
(4) Por 9,000 trees, averaging 650 feet and containing 5,850,000 feet of lumber, which defendant would have floated from Paradis swamp, at $5.50, less $3.35, for expenses, $2.15 per thousand.............. 12,557 50
(5) Por 2,500 trees, averaging 250 feet and containing 525,000 feet of lumber, which defendant would have floated from Islands 2 and 3, at $5.50, less expenses, $1.25 per thousand ...................... 656 25
(6) Por cost of deadening 9,000 trees in Paradis swamp, at 11 cents per tree ........................... 990 00
(7) Por cost of deadening 2,500 trees on Islands 2 and 3, at 5 cents per tree............................ 125 00
(8) Por loss by reason of depreciation in value of plant purchased for purposes of contract................ 5,000 00
$26,008 05
1. Item 1 is undisputed save as to an error in our former calculation which is now corrected.
2 and 3. As to items 2 and 3, defendant’s counsel suggest that the amounts heretofore allowed were smaller than they should have been and did not conform to the theory of the opinion, since the logs represented in them were ready for delivery, without further expense save that of towing to the mill, which alone should have been deducted from the contract price. Plaintiff’s counsel, on the other hand, contend that the deduction for towing should be 76 cents per thousand, instead of 25 cents per thousand, and rely upon the charge “for towing” as entered in defendant’s books, from which, if those charges were applicable exclusively to the towing of logs, it would appear that the counsel are correct in their view.
It is not alleged that any other expense . was to be incurred with respect to the logs in question than that of towing, and the obvious discrepancy between the theory of our former opinion and the decree, which was the result of mere inadvertence, has now been reconciled, as suggested by defendant’s counsel. The contention of plaintiff’s counsel fails to take sufficiently into account the evidence which has been adduced to the effect that the boats employed by defendant in towing logs were also engaged in other work, such as the supplying of the camps with laborers, provisions, and materials, and the towing of pull, tug, and dredge boats, and of barges laden with fuel, and that the entire expense was charged to the towing account. It is, however, necessary, in view of this testimony, to distinguish between the expense of towing logs and the other expense charged to the towing account, and in so doing we find that the expense of towing the logs ought not to have exceeded the amount which we have stated. In fact, whilst no witness who has been examined has undertaken to say that such expense would exceed 25 cents per thousand feet of lumber, several have testified that it could have been done for less, and we are of opinion that, in point of fact, it was done for less, by defendant.
*674. Counsel for plaintiff question the sufficiency of the testimony of the witness Walker as to the number of trees deadened in Paradis swamp, and inquire why the court should have accepted it and have ignored the testimony of Gutekuntz, to whom they refer as an experienced professional estimator of timber. The answer is that we have not accepted the testimony of Walker as conclusive of the question, but only to the extent that it commands acceptance by its inherent probability and the support of other testimony. We have first deducted from Walker’s estimate of the total number deadened 1,500 trees, and, after deducting from the remaining 22,000 the 4,000 trees removed prior to the issuance of the injunction, including the 2,225 placed in booms, have taken one-half of the 18,000 which remained, or 9,000 trees, as the number which we are satisfied that defendant would have floated from Paradis swamp. Walker testified that his object was to deaden a season’s supply in advance, which we take to be a credible statement; and, as the mill turned out 50,000 feet of lumber per day, and would have consumed 22,000 trees, averaging 650 feet, in 286 days, it would have been improvident not to have deadened that number.
As to the testimony of Gutekuntz, that witness undertook, in reply to a question asked by plaintiff’s counsel, to estimate the quantity of timber per acre in Paradis swamp, after having stated, when previously interrogated on the subject by defendant’s counsel, that he was entirely unable to make such an estimate. We think he is the better judge of his own capacity; but, taking his estimate as made, he stated that Paradis swamp would “run” about 8,000 or 10,000 to the acre, and, on cross-examination, that he was not prepared to deny, if any one should so testify, that it might run 20,000 feet to the acre, and he estimated the number of trees at from 16 to 18 to the acre, which last figure would call for from 11,700 to 14,400 feet to the acre, as the trees may have measured 650 or 800 feet. Elfert, by whom the plaintiff was represented in Para-dis swamp whilst defendant was operating there and afterwards, upon the other hand, test ifies that there were from 10,000 to 20,000 trees deadened. He says:
“A. Nearer approximation, I think, would be 12,000; possibly, 15,000. Q. Possibly 20,000? A. Possibly; I never saw the list. I never counted the trees.” etc.
It may be here remarked that the land, which for the purposes of this litigation is called “Paradis Swamp,” appears to be so called as representing certain tracts (in the midst of a large body of apparently swamp land) which were acquired from Edward Paradis by the Bowie Lumber Company, and by that company transferred, quoad the timber, to the Des Allemands Company, plaintiff herein. Mr. Downman, who is president and practically owner of both companies, gives the following, with other, testimony, to wit:
“I forget the exact acreage of Paradis swamp, some 2,000 acres, though, and there were probably 3,000 or 4,000 acres back of Paradis swamp of timber, with timber on them, that might have been operated, probably, under this contract.”
The deed whereby the property was acquired, as copied in the transcript, purports to convey the following described tracts, viz.: Fractional sections 13 and 24, township 14, S., range 19 B.; S. W. % of N. W. 14 and N. W. 14 of S. W. 14 of section 6, township 14 S., range 20 E.; W. % of E. 14 of fractional section 33, township 13 S., range 19 E.; S. % of N. W. 14 and N. 14 of S. W. 14 of section 18, township 14 S., range 20 E.; N. 14 of N. W. 14 of section 18, township 14, S., range 20 E.; S. 14 of S. E. 14 of section 28, S. 14 of S. W. 14 of section 27, S. 14 of N. W. 14, and S. 14 of N. E. 14 of section 24, E. 14 of fractional section 33, all in township 13 S., range 19 E.; also E. 14 of E. 14 of section 6, township 14 S., range 20 E.; S. IV. 14 of N. E. 14, N. W. 14 of S. E, %, N. IV. *69% of S. W. %, and S. E. % of N. W. % of section 6, township 14 S., range 20 E.
According to the title before us, therefore, no land was acquired in section 34, of township 13 S., range 19 E. We infer, however, that there may be some error of description, and plaintiff’s counsél have incorporated in a lately filed brief a sketch upon which the whole of the section mentioned, save N. % of N. E. %, is represented as included in the swamp of which plaintiff had control, and as a matter of fact it was upon that section, as also upon the fractional E. ys of section 33 (adjoining to the west), and upon the S. % of S. E. % of section 28 and S. % of S. W. % of section 27 (adjoining to the n'orth), that defendant, by plaintiff’s instructions, operated under its contract. In the subjoined sketch we have shaded only the tracts called for. by the title; but, taking those which plaintiff assumed to control, it seems that there were in the immediate field which was being operated when the injunction was issued 560 acres in section 34, .80 acres in section 27, .80 acres in section 28, and approximately 320 acres in fractional section 33, making a total of 1,000 acres.
It may be, on the one hand, that- all of this particular land did not contain- 22- trees to the acre, or that the whole of it was not operated; but, on the other hand, it does not appear that any one knew exactly where the lines were, and it is not improbable that, under the plaintiff’s instructions, defendant deadened trees on land which is not included in the title which plaintiff sets forth, there being, as we should judge from the maps filed in evidence and from the testimony, including that of Mr. Downman, plenty of surrounding or adjacent swamp which bore the name of Paradis, though it may never have belonged to that gentleman, and the instructions under which defendant acted being in substance: “There is Paradis swamp. Go ahead and get the timber out.” Upon the whole, we find no sufficient reason for doubting that 22,090 trees were deadened in what was called “Paradis Swamp.” But, even if it were otherwise, it would not affect the immediate question under consideration, which is, how many trees would the defendant have floated out? since it might be assumed, for the purposes of that question, that only 13,-000 trees were deadened, á number which is fairly within the estimates of both Gutekuntz and Elfert. The remaining questions connected with this item are: Could the defendant have floated 9,000 trees during the remainder of the high-water period? and, if so, at what expense? The injunction was served on April 27th, and plaintiff thereafter floated timber until about June 1st, though it is probable that, during the last few days, only small trees were taken out in that way. We conclude that there wére 28 days during which defendant might have operated to advantage, and within that time it would have been necessary for it to have floated timber at the rate of about 209,000 feet, or say 320 logs, averaging 650 feet, per day, in order ■to have taken out the 5,850,000 feet for which it is to be paid. During the same period of *71high water, Smith, a disinterested witness, with 15 men, floated 1,500,000 feet in six' weeks; Vincent, with from 15 to 25 men, floated 6,000 logs in four weeks, dragging them eight or nine miles by hand; and others floated far beyond the requirements of the occasion now under consideration. It appears from the evidence, too, that, conservatively speaking, 1 man will float 4 logs per day, and that in fact defendant, with an average of 25 men, floated an average of 130 logs per day during the 19 days from April 7th to April 25th, and that on April 21st, with 39% men (days’ labor), it floated 235 logs. It further appears that defendant had increased its force to something over 100 men, and had arranged for a further increase, from all of which we conclude that it is safe to hold that it would have floated the quantity of timber stated from Paradis swamp, and also as many as 2,500 small trees from Islands Nos. 2 and 3. As to the expense: Smith, Constant, Vincent, Drew, Nuttall, and Sanders, disinterested witnesses, testifying from experience, say that it should n<ft have amounted to more than $3 per thousand, at the outside; the testimony of Nuttall being that.F. B. Williams, by whom he was employed, had floated 35,000 trees, through eight contractors, at $3 per thousand, from which it may reasonably be inferred that there was a profit in floating at that price. Walker and Mayer testify that the actual expense to the defendant was considerably under $2 per thousand, and, whether they are correct or not, our conclusion is that defendant made, during the float, practically the first profit that it had earned under its contract. To the amount of $3.25 per thousand, fixed by our former decree as the cost of floating this timber, including the towage, we have added 10 cents per thousand as the cost of completing the boom which defendant had begun .and which would have been necessary to hold the timber as it accumulated.
5. Having given our reasons for holding that defendant would have floated 9,000 trees from Paradis swamp and 2,500 from Islands Nos. 2 and 3, it is only necessary to say, in regard to the item 5, that we have fixed upon $1.25 per thousand as the amount to which defendant is entitled, because we understand it to be conceded that the balance .of the profit goes, or would have gone, to a contractor.
6. The deadening of those trees in Paradis swamp which we have not found that defendant could have floated inured to the benefit of plaintiff, who should therefore pay the cost.
7. The same as to the trees on Islands 2 and 3.
. 8. Our re-examination of the record has led us to the conclusion that the evidence adduced affords an insufficient basis for a judgment for prospective profits predicated upon future operations with the pull boats. The defendant company, like the plaintiff, is practically owned by a single individual (Manuel Coguenhem), who is not inexperienced, whether in business generally, or in the particular business out of which this litigation arises. In the course of his testimony, he says: “I have been pulling timber right along for a number of years.” And Mr. Coguenhem had associated with him from the beginning, as his superintendent and swamp manager, Mr. Walker, who has been operating in swamps, pulling timber and floating it, all of his life. It is therefore safe to say that neither Coguenhem nor Walker had anything to learn with regard to the portion of the business which he undertook, and, having entered into the contract with plaintiff with a perfect understanding of its requirements, they operated under it for nearly two years, during which time they delivered between 12,000,000 and 13,000,000 feet of lumber, for *73which they were paid promptly, as the deliveries were made, amounts aggregating $71,-500. And yet up to the period of the float, as we conclude from a somewhat laborious reconsideration of their testimony and financial statements, they had made no money, or, at best, but a few hundred dollars. It is impossible, therefore, in considering the testimony of the different witnesses, and in following the calculations by which they show, on paper, a profit in “pull-boating” at this or that price, to escape the significant fact that, after an actual experience of about 19 months, in what is said to be an easily pulled swamp, the defendant did not earn that profit. And we cannot disabuse our minds of the conviction that, had the plaintiff repudiated its contract at the beginning, and had the defendant sued for the prospective profits of five years, instead of three, we should have heard the same testimony, and might upon the basis of that testimony have found the same reasons for awarding profits for the first two years as have been suggested, and as might be found, for awarding prospective profits for the last three years. It is evident, however, that a judgment rendered upon that basis, in so far as concerns the first two years of the contract, would have been lamentably unjust, since it would have given to the defendant a profit which its actual subsequent experience has demonstrated it would not have earned, and to which, therefore, it would not have been entitled. Who can assure us that a similar injustice .will not be perpetrated, should we now condemn plaintiff to pay the prospective and theoretical profits which are here claimed? Certainly not the witnesses upon whom defendant relies, for their testimony is as applicable to the one period as to the other, and shows as conclusively that defendant should have made money whilst it was actually operating, though in point of fact it made none, as that it should or would have made money if it were, or had been, allowed actually to operate during the period here in question; and, as that testimony would have afforded an unsafe basis for a judgment in the one case, so, we fear, it would afford an unsafe basis for the judgment which we are asked to render in the other. It is said that the conditions might, or would, have been different during the last three years of the contract; but it was for the defendant to make it clear that there might, or would, have been such a change in the conditions as would have enabled it to accomplish that which, in actual experience, it had failed to accomplish, and this it has not done. We find from the record that whilst the contract was in force there were complaints from both parties; but until plaintiff filed this suit neither party considered the other sufficiently at fault to justify any particular action, and we see no reason for holding, either that defendant would have acted with respect to the conditions of which it complained, or that during the balance of the term of its contract it would have found no cause of complaint, nor has our recent investigation convinced us that its failure to realize a profit in its actual operations is to be attributed either to a lack of time for preparation or to anything that was done, or left undone, by plaintiff. We are, however of the opinion that, in this view of the matter, defendant is entitled to recover for the loss sustained by reason of the fact that it made an outlay of money for the purposes and upon the faith of a contract which was to have continued for five years, but which, through the fault of plaintiff, as we have held, was terminated within two years, the amount of which loss is to be measured by the depreciation, up to the date of the institution of this suit, in the value of the property of plant in which the money was invested, consisting of pull boats, tow boats, house boats, camp boats, pile drivers, barges, tools, etc., all valued by defendant, for the purposes of this suit, at something over $21,-*75000, though it appears to have been offered to the plaintiff for .$19,000. In some respects this valuation is manifestly unreasonable, as, for instance, in the matter of pull boat 1, which was purchased by defendant’s president, for his own account, for $2,500 and sold to defendant, within a few days, for $4,000, and is now valued at $7,625.50; this valuation including all the wire rope with which it has from time to time been supplied, and the greater part of which has been worn out in the service in which the boat was engaged.
Upon the other hand, a portion of the plant, such as the house and camp boats, barges, dinkies, and camps, had little or no value save for the purposes of the particular contract for which they were acquired. Without lengthening this opinion by entering into further detail, we conclude that $5,000 should be allowed on account of this item.
For these reasons it is ordered, adjudged, and decreed that the judgment heretofore rendered in this case, as also the judgment appealed from, be amended by reducing the amount thereof to $26,008.05, and that the former judgment of this court be further amended, in that defendant and appellee is now condemned to pay the costs of the appeal. It is further adjudged and decreed that in all other respects said judgment last mentioned be reinstated and made the final judgment of this court.
See dissenting opinion of PROVOSTY, J., 41 South. 357.