This litigation arises under the following facts:

Plaintiff alleges the failure by the defendant to deliver to him according to telegraphic} orders, two hundred gallons of olive oil whioh he purchased at $4.30 a gallon and for which he hod sent e. telegraphic money order as demanded by defendants, for One Hundred Dollars, on account of purchase prioe ánd that on January 31st, 1919, plaintiffs wired defendants! "Please wire lowest price and terms, two hijndred gallons olive oil, .five gallon cans"; and thft on the same day the defendant's wired in response to the telegram:

"Lowest prioe, two hundred gallons olive oil, five gallon cans $4.30 per gallon, f.. o. b. Hew York, payment advanoe one hundred dollars,balance sight dfcaft against bill of lading; wire immediately".

Plaintiffs further 'allege that 'in response to the latter telegram, on January 33nd, the next day, he remitted the one hundred dollars and in a telegraphic message "ship me through Morgan Line, t\jo hundred gallons olive oil; this one hundred dollars confirms your request".

Subsequently on the next day, January 33rd, defendants "»oknowledged receipt of the One Hundred Dollars, account payment of the two hundred gallons cf olive oil ordered by you received, will ship by Morgan Line".

Plaintiffs allege further that relying on the agreement thus oonveyedj he had mads a sale of the oil in .question at $5.50 a gallon, semejo be delivered to purchasers on arrival in Hew Orleans, on January 37th, 1919, as expected under the agreement; thus making profit of $340.00.

And alleging that defendants instead of complying with this agreement, failed so to do.and d^d not ship Vfte order at onoe by the Morgan Line whioh they should and could 'nave don*, delaying shipment of oil to such an extent that the prioe of oil dropped One Dollars a. gallon after the expected time of *335arrived, of «ata a'óns'igttíüéat Jtó'HaTf Orleans, and they therefore were deprived of an additional profit,because the sale oould not be made at the agreed prioe and lost a dollar a gallon or an additional two hundred dollars.

That the sales made for two hundred gallons of oil were oanoelled by the purchasers on aocount of failure to deliver in time stated and alleging that defendants were not residents of Hew Orleans, but resided in the City of Hew York and having, no property within the jurisdiction of this Court beyond that shipment of oil in question, prayed for a writ of attachment and sequestration, seized under said writs, the property in question and also prayed for a judgment for 1540.00 with interest.

The writs issued, the property in question was seized and subsequently by an agreement between the parties was sold for account of whom it may oonoern, the funds deposited in the hands of the Sheriff, where they are at this time, the defendants filing a prayer for oyer which was oomplied with and subsequently filed an exception of no cause of action, which was by the Cáiurt after hearing, referred to the merits.

Then answering, defendants denied the allegations generally and averred that defendants ore a legal copartnership, domioiled in Hew York City and that plaintiffs were justly and truly indebted unto them in the sum of §760.00, balance, due- for merchandise involved in this esse, admitting they had received the one hundred dollars through telegraphic advices.

They admit the telegraphic request nf plaintiff to sell two hundred gallons of olive oil to them at §4.30 per gallon; they admit they accepted said offer on date set forth January 23nd, 1919.

They allege thst they shipped said two hundred gallons of oil on January 37th and to do so were oompelled to pack the oil in cans and cases in order to put same in deliverable condition; they admit that in accordance with She terms of the oontr^ct -*nd written instructions received from plaintiff they sent b. sight dr'-ft attached to the hill of lading for the price *336of said oil to the Canal Bank & Trust Company of the City of Hew Orleans and that in due course that draft with hill of lading attached was presented to plaintiffs who refused without cause to pay said draft and therefore wrongfully causing the writs of attachment and sequestration to he issued and subsequently sold hy consent of oew-sel of hoth parties, without pro-judiot, for account of whom it may oonoernj and alleging finally that defendant had faithfully performed all its obligations under said contract and is entitled to judgment for $760.00,. balance due.

We have carefully examined the record in this case, to-gjthsr with all the documents, telegrams, connected with same and we find that plaintiffs did, on Janaury 21st, 1919., wire defendants, asking for their lowest prioe and terms, two hundred g.-lions olive oil, five gallon cans; and on that same day defendants quoted the prioe at $4.30 per gallon f. o. b. Few York, together with a payment of one hundred dollars in advance, balance sight draft against bill of lading.

To this acceptance, also by wire, plaintiffs ordered defendants to ship immediately via Morgan Line, two hundred gallons olive oil and remitted through telegram, one hundred dollars requedted by defendants, pnd in reply to this telegram defendants acknowledged by wire, the reoeipt of one hundred dollars end agreed to ship the oil via Morgan Line.

We find that instead of complying -with plaintiff's request and shipping via Morgen Line, that defendants contended th”t on account of e. strike On that line thit they had shipped via the Pensylv&nia Railroad .and this caused the delay for several weeks in the delivery of the oil, and in the meantime the oil h”d declined sufficiently to cause s, cancellation of the seles made in contemplation of delivery, which could have been made if defendants had carried out the orders reoeived for shipment and shipped in accordance with contract.

*337The ¿vider.es of th» s-iss cf ths oil in question,and therefor ot-noellr Sion cf the orders/ ' is supported by the testimony of D'r.tcni, Joseph Greco and Joseph S. .!■■. , who were the uur-ch- sers of the oil ^if delivery wr.a made to then -within the ten d'.ys under their respective oontr-'-ots.

The Record presents else the evidence of the Agent cf the Morgen Steamship Lines, giving the d- tes of the 3' iling of the vessels at the time in question, shoving th---t if the shipment had be^n promptly made in acioritnes with orders received, they would h*ve arrived hers in smple time to hove mede the deliveries to the purohassrs end to hove yielded the profit cl-imsd by pleintiff in this cese; and we find further the testimony of this agent proves thet there was no strike of the Morgan Line at the time in question.

In the case Bright vs. The Produce Company, recently decided by this Court, Ho. 8.095. we held:

"Where a vendor fails to deliver the thing he has sold he owes to the purchasers as damages, the difference between the contract price and the market price of the thing on the day delivery should have been made."

And there cited numerous authorities in support of that dootrins.

In the 138th La. p. 138, Robinson vs. Barton, it was held:

"Thera was unquestioned delay in the delivery of seme of the lumber and damages may be recovered from the vendors by the vendee for delay in delivery of the thing sold, according to she circumstances in the case."

As to that -portion of plaintiff's claim for damages depending on what we consider to be spec-air.tive, this portion of the claim must be denied.

C. C. 1934; 137 La. 348; 35 Ann. 533; 47th Ann 648; 11th Ann. 300.

.that by We find in the record/agreement between counsel th-it the merchandise in question was sold at public auction *338by the Civil Sheriff vho hs-.s in his possession for account of whom it u.c-y oonosrn, the sum of §463.13.

Ths evidence convínoos us th:-t ths Siles male by Canton!, which were subsequently o-uoellecl, «culi heve yielded e. net profit tc him in the sum of §240.00 end in addition thereto the one hundred dollars p"id by plaintiff tc defendí nt prior to the shipment of ths oil, in accor lance with contract, waking the sum of §340.00, v.'hich plaintiffo sfccfat from this record in our.opinion t.re entitled, to recover. The ..refits claimed by pi intiff other /ise arc so soul' tivo and therefore under ths í-uthorities quoted gl-.iniiff o nnot reoovsr.

Fair the r-^sons as.oigned it is ordered, adjudged and ¿screed that there be judgment in £•. Vor of pi: intiff 3, V. S. D.ntoni & Cocpr ny <.iid c,j--inst ths defendant, Francisco Bertclli t. Company,, in the full sum of §340.00, with lisn <nd privilege on the property sequestered c-nd attached in this o. se, costs of c.ppa. 1 to bo p-id by pi..intiffs, costs of lover Court to be p id by the defendants.

-Judgment amended and affirmed-

*339V.S. DMTOHI & CO versus HiAMCESCO BBRTOLLI & COMPAEY

HO. 8205

COURT OP APPEAL PARISH OP'OKLRAKS

OK REr-HEARIKG

WILLIAM A. BEDI, 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.