On Appellant’s Motion for Rehearing
We have carefully considered appellant’s motion for rehearing, and are of the opinion that same should be overruled. Appellant calls our attention to our original opinion wherein we spoke of “unfilled orders” which appellee had in sufficient amount to more than use up the 287,152 board feet of-lumber which-was not delivered. The appellee in testifying about the demand for products of the kind he was processing in his mill, used the terms “request for prices,” “inquiries” and “orders” interchangeably. However, in checking the record we find that appellee did not, when using the term “order”, actually mean a definite offer to buy at any particular price, and we are glad to correct our opinion in that respect. It does not, however, change the effect of our opinion. The jury found that had the 287,152 board feet of lumber been delivered the appellee would have in all reasonable probability processed such additional amount and sold it at a profit of $.055 per board foot. These findings of the jury .were not -based on a firm offer to buy at a particular price, and it was r not necessary that they be. Appellee testified, based on many requests and inquiries he had from all over the United States, his knowledge of the -market, his knowledge of the cost of production, that he could have and would have processed and sold. • the additional lumber at such a profit. The jury believed him.
Appellant still complains that appellee did not account for any profit that he made out of the orders he filled by using surfaced or finished lumber. First, there was ho evidence that he made any profit out of the orders that were so filled. He testified that he filled the orders that he had already accepted in that manner without regard to cost, because he was forced to; that he could not make products out of that kind of lumber to advantage, and for that reason accepted no more orders. Second, regardless of the orders that appellant did fill, if he could have filled additional orders sufficient to use up the undelivered lumber he would be entitled to the profits therefrom as damages.
The motion for rehearing is overruled.