On Rehearing.
On the petition for rehearing of the ap-pellee, Palmer & Parker Company, granted September 6, the question of the rale of damages has been fully reargued. The court adheres to the view that appellee’s damages are not to be tested by the market value of the mahogany logs, as logs.
The appellee has filed in this court a motion for leave to file specifications and take evidence thereon. The motion is allowed, so far as the filing of the specifications is concerned; otherwise it is denied. The same specifications will, of course, be filed in the court below.
We now refer to the specifications so far as necessary to amplify our original holding that “the applicable rule is the actual loss to the appellee, by the delay in delivery of this cargo of logs, for use in its business as a manufacturer and seller of mahogany veneers, etc.” The specifications contain six basic items:
I. Loss on Grades Not Called for or Taken by Viator Contract.
Under this heading, all questions of fact arc open for full trial, — including the dates of determination of market values and the actual market values, of the various kinds of mahogany manufactured from the Mount Shasta cargo. But the appellee cannot assess damages on the United States by sales made at less than the shown market prices..
II. Loss on Grades Sold to Viator under Contract out of Mount Shasta Cargo.
Under this heading, appellee contends that the prices under the Victor contract were reduced, on February 15, 1921, retroactively, because of the delay and fall in market prices. The burden is upon the appellee to show that such reduction was caused by the delay, and not by reason of the provisions of the Vietor contract.
III. Mill Shutdown.
On the theory of loss on cut out-turn which we adopt, counsel for the appellee concedes that this item of $24,375 should nót be included.
IV. Deterioration of Logs, is the item of $15,000 referred to in the original opinion. All questions of fact as to that item are open at the new trial.
V and VI are claims for interest for four months at 6 per cent, on the cost of the Mount Shasta cargo ($4,740), and on the prepaid freight ($1,050). These items are hot' proper elements of damage if the appellee is allowed the difference in the market value of-' the manufactured product by reason of the] delay.
We cannot adopt the contention of appellant’s learned counsel that the reduction in prices involves such a drop as to make the market values of the manufactured product, at the comparable dates, an inapplicable test.
It is ordered that the decree of June 27, 1932, be amended to read as follows:
The decree of the District Court is vacated, and the ease is remanded to that court for further proceedings hot inconsistent with the opinion of June 27, 1932, and the opinion passed down this day; the appellant recovers costs of appeal against both Palmer & Parker Company and the Bowery & East River National Bank.