delivered the opinion of the court.
Appellant sued to recover five hundred seventeen dollars and sixtv-three cents as loss of profits or damages sustained for the breach of a certain contract in writing, by the terms of which appellee agreed to manufacture and deliver to appellant one hundred and fifteen thousand feet of lumber of stated dimensions within from] sixty to ninety days from April 27, 1917. ' The written order evidencing the contract stated that the lumber was for export, and appellant averred, and offered testimony tending to prove, that it had resold the lumber at a net profit of four dollars arid fifty cents per thousand feet, which profit appellant would have made had the lumber been delivered. The lumber was never delivered, and this suit was instituted in tins circuit court of Covington county for the consequent damage and interest. Both the parties are corporations engaged in the manufacture and sale of lumber and timber.
Appellee, as defendant, interposed the plea of the general issue and a special plea, in which it is averred: That the plaintiff ought not to recover because, under the act of Congress entitled “An act mialdng appropriations to supply urgent deficiencies in appropriations for the military and naval establishments on account of war expenses for the fiscal year ending June 30, 1917. and for other purposes,” which act became a law June 30, 1917 (chapter 29, 40 Stat. 182), the President of the United States, July 11,1917. issued an executive order delegating and vesting in the United States Shipping Board Emergency Fleet Corporation all power and authority which by said law had been vested in the President in so far as applicable to and in furtherance of the construction of vessels, the purchase or requisitioning of vessels in process of construction, whether on the ways.or already launched, or for the contract and construction of such vessels and the completion thereof, and all powers and *639authority applicable thereto, and in furtherance of the production and requisitioning of materials for ship construction. That the United States Shipping Board Emergency Fleet Corporation on September 19, 1917, wrote a letter to appellee requiring it to place at the disposal of said corporation all'long leaf yellow pine lumber purchased by appellee of certain sizes and dimensions, and forbidding appellee to sell or dispose of any lumber of the sizes mentioned without authority of the said corporation or the priority committee of the "Wiar Industries Board, and that, on account of said law, the executive order thereunder, and demand of the United States Shipping Board Emergency Fleet Corporation,, the defendant was unable to manufacture and deliver to the plaintiff the lumber which it had agreed to deliver. The letter from the Emergency Fleet Corporation was filed as an exhibit to the plea and reads as follows:
“United States Shipping Board Emergency Fleet
Corporation.
Washington, D. C., Sept. 19, 191Í7L
“Kola Lumber Co., Kola, Miss. — G-entlemen: By authority vested in the President of the United States by Congress in an act entitled ‘An act making appropriations to supply urgent deficiencies in appropriations for the military and naval establishments on account of war expenses for the fiscal year ending June 30, 1917, and for other purposes,’ which act became a law on June 30, 1917, and by authority delegated to the United States Shipping Board Emergency Fleet Corporation by executive order of the president in his proclamation dated the 11th day of July, 1917, copy of which is hereto attached, I hereby require and order:
“That you place at the disposal of the United States Shipping Board Emergency Fleet Corporation all long leaf yellow pine lumber produced by you of sizes 12 inches X 12 inches or larger X 24 feet long or longer, *640or any sizes thirty feet or longer, and deliver the same, or parts .thereof, in such quantities and at such times and to such persons as may be specified in orders hereafter to be given you, and that you do not sell or dispose of said lumber or any part thereof unless you first obtain authority from the United States Shipping Board Emergency Fleet Corporation or the priority committee of the War Industries Board.
“An immediate acknowledgment of the receipt of this letter is requested.
“Yours very truly,
“[Signed] W. L. Capps, Gen. Mgr.”
It appears from the written contract that only a part of the lumber contracted for is of the sizes mentioned by the Emergency Fleet Corporation in its said letter, but the position of appellee in the trial was, and now is, that because of its inability to deliver a material portion of the lumber it could not fill the entire contract and did not undertake so to do. To the special plea appellant, filed a replication, setting up, among other things:
“That defendant did not use legitimate and proper means in its power to secure a permit to ship plaintiff’s lumber, and was not unable to secure the same, and was not compelled by sovereign power to manufacture and ship all of such lumber under the direction of government authorities, ” etc.
It is also averred in the replication that the defendant had ample time to fill the plaintiff’s order before any request or demland was made by the government or the government’s agency.
Upon the trial of the case evidence was introduced 'by both ipiartis. A, peremptory instruction was asked by both the plaintiff and the defendant. The motion of the defendant, appellee here, for a peremptory instruction was sustained, and from) the judgment rendered in pursuance thereof appellant appeals.
*641There are two main contentions on this appeal: First, that under the testimony appellee made no effort to secure a permit from, the Emergency Fleet Corporation, or any one in authority, to fill plaintiff’s order; second, that neither the President by his executive order, nor the United States Shipping Board Emergency Fleet Corporation by its written demand, intended to interfere with any valid contracts entered into in good faith between the appellee corporation and other individuals or corporations, and that performance of a contract was not made impossible by law or the happening of something which was unforeseen and which has entirely changed the position of the parties.; the contention being that the written order or demand of the Fleet Corporation did not in terms forbid the filling of existing orders or contemplate the cessation of all lumber dealings and the stagnation of the lumber trade as between private individuals. The record shows that no application was made by appellee to the Emergency Fleet Corporation or any government agent for permission or authority to fill the order in question.
It may be conceded that appellee receivedl many government orders for lumber of the sizes contemplated by the contract involved in the present suit, and that performance of the contract sued on mlay have-been rendered difficult by the exigencies of war. But the legal excuse pleaded was not sufficiently established by the testimony.
It is in evidence that the contract between the parties was entered into July 27, 1917 after Congress had invested the President with the powers set out in in the special plea, and the appellee did not advise the Emergency Fleet Corporation of the existence of the contract, or make application for permission to comply with it. In the letter to appellant under date of November 6, 1917, appellee stated:
*642"We have been given more business, from the government in the way of timbers than we had anticipated and are instructed that this be given preference over everything else. If it should happen that your timbers are for the government and you can supply us with government order number this will help very much.”
There was certain other correspondence, but in no instance did appellant waive its rights, but, on the contrary, insisted upon performance and -gave notice of damage in event the contract was not performed. It will be observed that the letter from the general manager of the Fleet Corporation of date September 19, 1917, forbade appellee from selling or disposing of any lumber of the grades and dimensions specified, "unless you first obtain authority from the United States Shipping Board 'Emergency Fleet] Corporation '-or the Apriority committee of the War Industries Board.” By this language it may be reasonably inferred that the authority of the Fleet Corporation to fill existing contracts would have been given in all proper cases. It is in evidence that appellee’s mill had a capacity of about sixty thousand feet a day, and the record does not show exactly what lumber appellee cut during the time or the sum total of. the government orders filled.
We conclude that on the testimony appellee was required to manufacture and ship the lumber as agreed, or excuse performance by showing a proper application for permission and a refusal by the Emergency Fleet Corporation to permit the manufacture and shipment, or at least the shipment of a material portion of the lumber agree upon. There was no law forbidding appellee to operate its sawmill or to manufacture lumber. It was not unlawful for the parties to enter into the contract sued uponj Our view renders it unnecessary to construe the powers of the President under the Act of Congress relied upon, or to determine whether the Emergency *643Fleet Corporation, as a government .agency, had the power to forbid appellee to perform a contract otherwise, valid and binding.
It is conceded by the parties that this is a proper case for a directed verdict one way or the other. We are of the opinion that appellant as plaintiff in the action was entitled to the peremptory charge. The judgment appealed from will accordingly be reversed, and judgment entered here for the amount sued for with interest.
Reversed, and judgment here for appellant.
Reversed.