*339V.S. DMTOHI & CO versus HiAMCESCO BBRTOLLI & COMPAEY
HO. 8205
COURT OP APPEAL PARISH OP'OKLRAKS
OK REr-HEARIKG
WILLIAM A. BEDI, JUDGE:
Willi AK A. BEIL, JUDGE:
On the 16th of January, 1932; there was judgment rendered herein by this oourt, resulting in a reduction of the ;'uci£rilen^ 0:f tlie court from §640 to §340, interest, etc., in favor of plaintiff, and as thus amended, said judgment was affirmed
Upon re-hearing and after re-examination of the record herein, v.e are of the opinion that our former judgment was erroneous and should be set aside.
This is a suit for damages alleged to have been suffered by plaintiff because of delayed shipment and delivery of 200 gallons of olive oil purchased by plaintiff from defendant in the latter part of January, 1919.
The contract of sale is shov.n by telegrams and letters filed in the record. It appears that on January 21, 1919, V. 3. Bantoni 8■ Company, plaintiff herein, of Hew Orleans, large dealers in olive oils and similar products, wired Eraneesoo Bertolli & Company, of Rev: York City, for lowest prices and terms on two hundred gallons of olive oil in five gallon cans. On the same day, immediate reply was 'made by Bertolli 8: Co., defendants herein, stating- the price for such goods in five gallon cans would be §4.30 per gallon, f.o.b. Hew York, and that advanced payment for §100 should be made and balance paid by sight-draft against bill of lading.
On next day, January 22, 1919, plaintiffs remitted, by 'V'ojtcrn Union Telegraph Company, the one hundred dollars with following telegram:
"Ship immediately via Jlorgan line, tvo hundred gallons olive oil this one hundred doll: rs confirms your request."
Defendant wired plaintiff next day, January 23, 1911, as follows:
*341"¡Telegraphic remittance of one hundred dollars account payment £00 gallons olive oil ordered by you redeived we will ship by Morgan Sine."
She shipment was made by defendants on January 27, 1919, by rail, and not by water, as stipulated and agreed in the telegrams just quoted. On the day of the shipment the following letter from plaintiffs was received by defendants:
New Orleans, la., Jan. 22, 1919.
F. Bertolli & Co., 15 West Houston St., New York, N.Y.
gentlemen:
Your night letter received. Vfe wired you 100.00 as per your request.
In making us the shipment of 200 gallons olive oil in five gallon cans, please mail draft to Canal Bank & frhst Co. You may ship via Southern Pacific Steamship Company, which is also known as the ¡{organ ¡Line .
Hoping you will make immediate shipment, we are,
Yours truly,
V.8. Bant oni & Co.,
by V. S. Bantoni.
On January 29, 1919, plaintiffs wired defendants :
"please wire if you made shipment and when.”
To v.-hioh, on same day, defendants replied:
"V.'e made shipment Monday, twenty-seventh instant, as per yesterday's letter."
*342We find that the offer and aooeptanoe of sale was definitely closed on January 22, 1919, with no subsequent alterations or conditions, rime was not of the essence of this contract, no fixed period for delivery being stipulated, and the vendees only stating, in their letter of January 22, (above quoted) that they hoped vendors would make immediate shipment, and also saying, "You may ship" via Southern Tacific, or Morgan line. The testimony of one of the members of the defendant firm explains the natural, and what seems to us, were the usual and necessary delays in withdrawing the oil from cold storage, thawing, canning, packing, and shipping same. There was no negligent or improper delays whatever on the part of defendants, who started the order on its way five days after consummation of the contract, and two days before any inquiry or apparent attempt to put them in default, as shown by plaintiffs' wire of January 29, 1919.
It is true that both plaintiff and defendant agreed on the method of routing the shipment, but defendants' non-compliance with this part of the agreement is not shown to have resulted in any serious damage to the plaintiff nor to have been coupled with any fraud or bad faith on the part of defendants. The rail shipment seems, from the evidence, to have been resorted to by defendants upon mis-iriformation given them by one of their employees as to a strike on Morgan Steamship line, and this information seems to have been the only reason for defendants routing over the railway line on the very same day and on the earliest day upon which the order could have possibly been shipped.
There is nothing before us to show/ that it the date of purchase plaintiffs, in any manner, advised defendants that the order in question was to serve the purpose of re-sales at higher prices to contemplated or established customers, or *343to fill specific orders previously .seoured. But even had such conditions surrounded this transaction, and had the rail shipment caused delays, tending to the loss or cancellation of the re-sale orders, it would be necessary to plaintiffs' recovery of alleged loss of profits to show that there was no available market to which they could have resorted a3 another and different means of supplying the re-sale orders on terms as favorable as those anticipated at the hands of defendants. If it be shown that the buyer, upon default of the seller to deliver as agreed, or after reasonable delay, could have bought even in a higher market, and failed to do so, he cannot claim damages for loss of profits, especially if the original transaction was not predicated upon contemplated re-sales, and of which the seller was not previously notified before accepting the order.
We find, on more careful re-examination of the record, that plaintiffs had ample opportunity at the point where the order was to be delivered, and at the earliest time upon which it could have reasonably, been delivered, to wit, . Hew Orleans, January 28, 1919, to have purchased olive oil, in' guantity and quality equal to that under the original order.
In-fact, it is'dearly shown from plaintiffs’ own testimony, that such purchases were made by them prior to ..the alleged cancellation of the re-sale orders. We further find that the market was freely opened and that''plaintiffs freely availed themselve's of purchases at $1.00 per gallon less than those made of defendant, and with which they could have easily and immediately met the re-sales shown to‘have been secured at $1,20 advance over the defendants’ price.' In other words, it is plainly shown by the testimony hereinafter quoted, that had plaintiffs never reckoned with defendants it would-still have been possible between January 28th and February 3, the time *344or period still 'opened to plaintiffs for their alleged re-sale orders, to have profited at the rate of $2.20 per gallon, the market then being at $3.& per gallon as against $5.50 per gallon, the re-sale eontraet price. The testimony of V.S. Dantoni is conclusive upon this point) and is now, upon our reexamination of the record, the impelling fact which influences us to a reversal of our former judgment. On p. 15 of the testimony this witness, a member of the plaintiffs' firm, testifies on cross-examination, as follows:
"Qi- Did you make any effort to buy Olive Oil on the declining market?
A:- Well., you mean previous to this purchase or after?
Q:- On January 28th, when you found out that the market was declining, did you go out and try to buy any after that?
A:- Yes, sir.
Q:- Did you buy any?
A:- $3P30 per gallon.
Q:- How many gallons?
A:- 218 Gallons.
Q:- Did you use any of that in the fulfillment of your contracts?
As- Ifo, sir.
0:- Could you have bought more at that price at the time?
A:- Yes, sir.
We have given careful attention to argument and brief of counsel for plaintiff, as submitted upon the re-hearing of this case,but the above quoted testimony, which we especially noted at the re-hearing, and the effect of which is now stressed, has not been satisfactorily reconciled with plaintiffs' claim for damages sustained, or profits lost.
*345TJnder the faots of this oase, as well as the law applicable to all similar oommercial transactions, the only damage, following a breach of oontraot, whioh oan be recovered, is that whioh both of the parties to the oontraot, in the absence of fraud or bad faith oould have reasonably oon. templated at the time of the oontraot. Rev. Civ. Code. Art. 1930 - 1934.
Plaintiffs' refusal to accept the shipment upon its arrival in Hew Orleans, on February 11, 1919, or to honor the draft with bill of lading attached, was not justified, when the faots are shown to have been such as plaintiffs' own testimony has here disclosed. The defendant corporation being an absentee, without an agent in the State, the oil in question was seized, upon the filing of plaintiffs' petition, February 21, 1921, writs of attachment and sequestration having been issued. By agreement of counsel for both parties to this suit, the oil was sold by the Civil Sheriff, and the proceeds derived therefrom, in the sum of $469.13 was deposited in the Sheriff's hands to await the final determination of this proceeding.
We find that if any fault existed in this matter, it was that of the plaintiffs, in not availing themselves of the opportunity to protect themselves against any loss due to the delays in the delivery of these goods. Concerning damages recoverable in contracts of sales, we find the above lav/ to be no different from the jurisprudence of our State. In Elliott, on Contracts - Sales. Par. 5108 - Measure of Damages - Difference between contract price and market value, the text reads:
"Where there is an available market, the measure of damages, ordinarily and in the absence of special oiroumstanoes, is the difference between the contract price and the market or current price of the goods at. the time or times that they ought to have been delivered', or if no time was fixed, then at the time of refusal to deliver."
*346Foot-note:
"As stated in a recent case applying the rule to a contract for sale of grain, the measure or damages for breach by a seller, of a contract for sale of grain to be delivered at a certain place, is the difference betv.-een the contract price and the market price of the same quality of grain at the place of delivery, at the time of the breach, if there was a market price at such time and place, where the buyer purchased same in a reasonable and diligent manner.” Gaunt vs. Ralston, Purina Company, 198 Fed. 60, (U.S.C.C. 8th Circuit.)
In the instant case, the only damages that could have been suffered by the plaintiffs are those which must have arisen at the time that the delivery of the oil was refused. V/e find, from the evidence, that at that titiie, to wit, February 11, 1919, the market price, £3.30, was still very much below the contract price of $4,30 per gallon. Had the defendants been at fault, with the result that the goods failed to reach their destination within a reasonable time, (no time for delivery having been -definitely stipulated), the only damage which could have been sustained would have been the difference between the contract price of $4.30, some other higher market price. Such facts are not shown to have existed in the case before us. - Sutherland on Damages, Vol. £, 4th Ed. Par. 651, p. ££77:
’’Where no time is fixed for delivery, and the delay has not been unreasonable, damages are computed as to the time delivery was refused.”
Par. 653, p. 2897:
”fhe defaulting vendor cannot be charged with more than that price (the market T.tf'ice) because the vendee had a contract for re-sale at a higher price.”
P. ££99:
"Y/here the market price is less than the contract price at the date when the contract requires delivery, the vendee can suffer no actual injury.”
*347The recovery of that sum of money which measures the difference between the market value of the property at time and place of delivery, and the original contract price of the property/is such a sum as would be recoverable here,had defendants been at fault in failing to deliver at a specified time or in a reasonable time, and had the market price been higher than the contract price, None of these facts have been proven in the instant caco, It is plain that there hu- been no damage suffered and that plaintiffs have no justification in fact or at lav/, in repudiating the contract.
Counsel for plaintiffs stresses in his brief the authorities cite: by the judge of the trial court, and reported in 146 La. 296, Uaroy Lumber Co. vs. Luie-Hodgo Lumber Co., also 146 La. 511, Penick ¿L JPord vs. Lugardc. But those casos are not aplicable to the ease under consi doral j on, for the reason that in the cited cases definite time v.us slipiCvateu for the performance of tie contract, and ior the further reason t) at the parties undertoking to sell and deliver were advised '-o tc the purpose for the goods in cuestión - to be funJshed Tor manufad ure and sale by the purchasers in a manufacturer’s market. In these cases tine was of the essence of the contract, and the vendors in both cases defaulted. In the case before us no definite date of delivery was specified, nor has it been shown in the evidence that time wa3 of the essence such as to justify a rejection of the contract without putting in default. There can be no doubt that plaintiffs at no time specifically placed defendants in default, unless the letter of plaintiffs, written defendants under date of January 22, could be construed as an active placing in default. This letter, in fact, did not reach the defendants until January 27, and was not, in its language, *348such a letter as could be intended for the purpose of putting in default, nor was it, at the time of its issuance, a time upon v hi oh putting in default would have been justified. It is also a fact that on the day of the receipt of this letter, the shipment went forward. If, by any possibility, it might be argued that there was a passive violation of the contract in that defendants failed to ship by sea as directed, there can be no doubt that in a provision of our Civil Code this passive violation could not have availed the plaintiffs without an active placing in default. R.C.C. 1952 - 1933.
Defendants have pleaded in re-convention, wherein they pray for a judgment representing the balance of the contract price of the goods sold by them to pláintiff, to wit, the sum of {760, one hundred dollars of the original purchase price having been paid by wire as a cash consideration on the day the contract was entered into.
It is contended by counsel for plaintiffs that, notwithstanding the claim jMehSamages sustained, or for profits lost, they are entitled in addition thereto, to a refund of the hundred dollars originally deposited. Such contention would be sound if the contract in question could have been rightly repudiated. Otherwise, recovery of this amount is not possible. It follows that the judgment of the trial court should be reversed, and that the writs of attachment and of sequestration should be dissolved. We find that the demand in re-convention is well founded, and must be recognized.
It is therefore ordered and adjudged and decreed that the previous judgment of this court be set aside; that the original judgment of the trial court be, and the same is hereby reversen and annulled, and that the writs of sequestration and attachment be, and the same are hereby dissolved^
*349It is farther ordered, adjudged and decreed that the demand in re-convention, of Francesco Bartelli & Co. vs. V. S. Dantoni & Co., in the sum of $760 with the judicial interest from July 1, 1919, be and the same is hereby maintained, and that the Civil Sheriff of the Pariph ofOíjleans be, and he is hereby directed to pay unto theytféíáaZsK^inLn re-convention, the sum of $469.13, the proceeds of the goods herein seized and sold, a gnedjt for said amount to be given to V. S. Dantoni & Co.,<5¿/L-'in re-convention, as against the judgment for which they are hereby cast, in the sum of $760.00 with interest as stipulated.
It is further ordered, adjudged and decreed, that V.S. Dantoni & Co. pay all costs of both courts.
JUDGMENT RE73RSED,MD DEMAND IN HE-C0N7ENTION MAINTAINED. March 13 1992.