On Rehearing.
BREAUX, C. J.Judgment was rendered heretofore against defendant for $2,550, with 5 per cent, interest per annum from the 27th day of June, 1908.
In other respects the suit was dismissed, except as to an amount stated, as to which the case was remanded.
Defendant in its application for a rehearing urged different grounds.
At this time, we are informed, as relates to matter as to which the parties agree, that all sales are made f. o. b. mill, and, as to freight on merchandise, it is stated in a “Red Cypress Current Book” made part of the record.
The parties agree that the sale was made f. o. b. the mill at Sterlington, La., and that the little red book before alluded to includes the price of the lumber f. o. b. the mill plus the freight to St. Louis.
We do not understand that there is any disagreement between parties as to the cost of unloading, inspecting, grading, reloading, and handling lumber fixed at $7,380.96.
The point of disagreement between the parties is as follows:
Defendant’s contention is that this amount of $7,380.96 and the freight charges should be added to the contract price in order to fix the cost of lumber before the amount of profit can be determined.
While plaintiff’s contention is diametrically to the contrary; that that amount should not be added.
Plaintiff’s contention is that, the railroad rate being 18 cents from Louisiana points to St. Louis, the price includes freight.
We have not found it possible to adopt that theory. There is no necessity, in view *362of the contract, of adding freight to the price.
The terms of the contract do not admit of such addition. The price was a flat price, and by no construction should it include anything else — -freight for instance.
In ascertaining the liability of defendant, the amount of loss sustained by plaintiff, or the gain he has not realized, is the rule, we think, that should be followed.
The application of this, and the method to be followed in determining the amount of damages have given rise to earnest argument and discussion.
We conclude that, plaintiff having bought the lumber at local prices, where it is not possible to establish with any degree of certainty its value, the St. Louis prices should be acceptable to all concerned. Plaintiff bought to sell in that market. The profit he would have made is a fair basis.
The price of the sale was $37,311.60.
At this point the defendant urges that the freight, to wit, $6,642.87 should be added, making the price in St. Louis, freight added, the sum of $43,950.37, plus the cost of inspection, measurement and other similar charges, $7,380.96.
Stating in tabulated form........ $37,311 50
Freight ........................ 6,642 87
Unloading, inspecting, yarding, and
handling ..................... 7,380 98
Total ....................... $51,335 33
■ — cost of lumber in St.' Louis, as per defendant’s calculations.
The price in the latter city was, according to defendant, $53,880.43.
Deducting cost of manufacture, freight, unloading, inspecting, yarding, 'and handling, viz., $51,335.33, leaving on the above theory an amount, which defendant concedes' as due, of $2,550.10.
In other words.................. $53,885 43
Less cost, expenses, and charges before stated..................... 51,335 33
'Balance due.................$ 2,550 10
The contention of defendant is that under no circumstances could plaintiff have realized a larger amount from the contract.
The foregoing is the loss which plaintiff has suffered, or gain which he did not realize owing to defendant’s breach of the contract.
In oral argument, the contention of learned counsel for defendant was that the price f. o. b. at the mill should be taken as the basis to fix the amount of loss that plaintiff has suffered or loss of freight of which he was deprived.
Plaintiff’s order, which defendant undertook to fill, mentions opposite each item of lumber ordered the’ price per foot, amount stated, and opposite each item, f. o. b.
If the lumber was to be delivered f. o. b. at mill, and of this there does not seem to be any question, then the price agreed upon was at the mill, and is not subject to a deduction of freight and other charges before mentioned.
Plaintiff received the lumber at the mill. Plaintiff must necessarily pay the freight on this lumber to St. Louis.
If A. of this place buys goods of B.’ in Boston f. o. b. at the Boston freight depot the freight to this place must be paid by A.
It would be otherwise were he to buy merchandise in Boston, but deliverable f. o. b. at the ptlace of destination.
The earnest opposition of plaintiff is to the item of $7,380.96, representing the cost of unloading, inspecting, yarding, reloading, and handling.
The amount is not seriously questioned; besides, it is sustained by a preponderance of the testimony.
The contention of plaintiff is that the defendant has no right to the deduction.
Plaintiff arrives at a balance of $9,931.06 which he claims.
We accept that balance but we deduct the $7,380.96 above mentioned, leaving a bal*364anee due of $2,550.10, for which defendant is liable.
The items of the amount to which plaintiff so seriously objects were necessary expenditures in order that a retail or wholesale dealer may sell his lumber in St. Louis.
There is no profit possible before the expenditure.
The plaintiff is at that expense, the evidence shows, in his sales. Why should not this expense be the same and these amounts deducted in this instance when fixing the amount of his freight?
The plaintiff cannot object, and has not objected, as we view it, to the freight charges. He has no better reason-for objecting to the local charges in St. Louis; one is as necessary as the other in fixing the profits.
Now, as relates to the law:
Article 1934 of the Civil Code is plain. Loss and profit are the measure of damages. There is no loss save that loss resulting from the profit of which plaintiff was deprived.
The articles of our Code are modeled very closely upon those of the French Code upon the subject.
From Fuzier Hermann, vol. 2, p. 1092, in a case similar, it is said:
“Le juge doit en ce cas en faire l’appréciation d’aprSs les régles de l’équité.”
It is at least equitable to charge plaintiff with expenses before fixing the profit.
As to the place at which the freight and loss are to be determined:
We have stated that plaintiff has accepted the place and destination, and in that respect has followed the ruling in Williams v. Bienvenue, 109 La. 1029, 34 South. 63.
Southern Sawmill Co. v. Ducote, 120 La. 1052, 46 South. 20, cited by plaintiff in support of its claim.
The amount of $7,380.96 is admitted, for, in its petition for a rehearing, plaintiff claims this amount for its account in fixing balance due; plaintiff claims it as credit.
The court holding, on the contrary, that it is a debt, the amount claimed by plaintiff, as relates to the amount and the work and services rendered, is correct and must be allowed.
Furthermore, plaintiff avers that no rehearing is necessary in order to allow this additional amount to it, but that it can be decreed in passing on the application without the necessity of a formal reopening and rehearing of the case.
This applies with equal force to the case of the defendant.
It is therefore ordered, adjudged, and decreed that our former judgment be reinstated to the extent that it decreed that, plaintiff have judgment in solido, as therein stated, for the sum of $2,550, with interest at rate and from date stated, and in all other respects decreed except as to the $7,380.96, as to it. The former judgment is not reinstated.
The claim is placed to defendant’s credit, and the balance is as first stated in our decree. The judgment is not reinstated in so far as it decreed a remanding of the case.
It is ordered that it is not remanded, but finally decided as above. Defendant to pay the costs of the lower court; the plaintiff to pay the cost of this appeal, as before decreed.