This suit Is an action for damages for breach of contract, claiming damages in the sum of $358,31,

Quoting from plaintiff’s brief, page 3: "Plaintiff claims the amount in question for a loss upon a resale of two hundred bags of ooffee which plaintiff contracted to sell to defendant. It appears that prior to the shipment of this ooffee from Hew Orleans to Montgomery, the defendant undertook to canoel this contract and the plaintiff after notifying the defendant that he refused to acquiesce in this cancellation, resold the ooffee for defendant's account and aooordingly suffered the loss claimed by this suit.

The contract speoifisd shipment of October 1st (1919) but the ooffee was Just about to be shipped on Ootober 13th, when defendant undertook to oanoel the contract.8

The answer, quoting from defendant's brief at page 5, "admitted the making of a contract but averred that on October 2nd, 1919, one Taylor McClellan, of O. P. Holland & Company, the brokers, who had made the sales oalled on it for shipping instructions and that defendant requested shipments made on the following Tuesday, Ootober 7th. It admitted that Instead of shipping the ooffee purchased by it In accordance with the contraot, plaintiff delayed shipment until Ootober 8th, but denied this delay was in accordance with its request. Defendant admitted that on Ootober 13th, 1919, it wrote plaintiff oanoelllng the contract but darofec denies that said cancellation was made without any notice or demand to ship ooffee, averring that said notice had been given to plaintiff through said brokers! admitted that thereafter plaintiff oalled on to oomply with the contract, refused to do so. Admitted that plaintiff notified it that he would proceed to sell said ooffee but denied that plaintiff was entitled to sell said ooffee for its account. Defendant further averred that when Mr. MoClallan oalled on Ootober 3nd, 1919 and asked for shipping instructions, it requested that the ooffee be shipped on the following Tuesday, October 7th, *359Tte.-fc aot hearing ízoa either plaintiff or Holland * Company, Brokers, by tho lltb of Ootober» and not knowing whether plaintiff intended to ship acid coffee, if wa» forced to order coffee elesohoro and oa tho 13th, still not hearing fron either plaintiff or oaid brokers, it oanoclled the contract, *>

Wa have ttoao quoted from both plaintiff*9 and defondfiat’o brief» in order that there can be' no difiér-enos oo-far as the faots are concerned in reference to the final decision of this oase on ita merits.

We haws ear.-r’ ".lly araalnad and oonaidered all tho evidence, together with telegrams, letters and exhibits filed in this reoord and tho question to be determined from the feote ie whether or not defendant violated its oontraet and whether under the eiraumatanees it waa necessary to piaos plaintiff In default,

Tho Judge aqua who hao given hie opinion of the faots in this case in extenso and In writing has found the following facts, in which, in every particular we concur!

’The contract is for a shipment of two hundred bago of coffee on October 1st, It was tho duty of the seller to have delivered this coffee to the common carrier, having the most direct and cheapest route to Montgomery, Alabama, Tho evidence shows, however, that it is n usual and customary, I Imagine as a matter of courtesy to the purchaser, to inqnlre from him within a reasonable time, if he has any preferenoe for any route or common carrier, and to aooede to his desires in that respect. It is plain from the evidence that at the time of making the contract, and thereafter, tho purchaser had no ohoice of ronte and relied on his oontraotor, believing that he would receive the coffee in due oourse by oomaon carrier, after the first of October, The seller delayed oommunioating as to choioe of routes, until September 30th, on which day he wrote to the broker, who *360had negotiated the sale, asking the broker, who no longer had any oonneotion with the transantion, to wire him shipping instructions. This oommunioatlon should have been sent two or three days previous to September 30th, to say the least, and should have been addressed to the purchaser. Holland & Company, through one of its employees or members of the firm, Taylor McClellan, went to the purchaser on October 3nd, and informed the purchaser that Holland & Company had reoelved a letter from the seller asking for shipping instructions. The evidence convinces ms that this was the first that the purchaser knew of the faot that the goods had not been shipped on October 1st, the due date tinder the contract. The purchaser then and there had the right to cancel, but Instead of cancel-ling, he informed McClellan that if the goods had not already been shipped, that immediate shipment thereof would be Inconvenient then, giving the reasons why it would be lnoonvenient, and stating if the ooffee had not been shipped on the first, then, that it would be better, end they would prefer that it be not shipped until the 6th or 3th, According to the testimony of ■hitfield, the further statement was made that it must be shipped by that time, otherwise he would be out of ooffee and have no supply on hand for his customers. McClellan undertook to oonvey thlw message to Holland A Coop oar and either garbled it, or Holland & Company misunderstood the message correctly delivered, for Holland & Company wrote the seller that the purchaser had no ohoioe of route but desired the goods to be shipped after the 8th. Ae It was the duty of the seller to oonmunicate directly with the buyer, but he saw fit, instead of so doing, to aommunioate with a third person, who had lost all oonneetion with the transaction, and thereby made thie third person his agent both to oon-rsny the message and bring book the reply. If the goode had been shipped on the 9th, even under the erroneous letter, they would hare reached the purohaeer *361In time, but/ftitextt ware not shipped, and on the 13th had not reached the purchaser, in Montgomery, and they were then, according to instructions, the seller had given, from seven to eight days behind time, and the purchaser oancelled. In the meantime, the prloe cf coffee had gone down and the loss had then accrued, and had to be borne either by the seller, or by the purchaser. The seller Ind iM it within his power, by being vigilant, to carry out hie contract oooordlng to its tenor, and to h-ve thrown this loss on the purchaser. ®He was not vigilant. He did not Bhip the goods at the time he had the right to ship them, and as he slept on his rights, he gave, in my opinion, legal cause for the purchaser to cancel the order. The purchaser availed himself of this rifht, and threw the loss upon the seller. In my opinion, he was acting within his right. The goods not being shipped either on the 6th or 7th, whioh was an extension granted after default originally, the seller must stand the consequence.

There will be judgment in favor of the defendant.®

Under the facts the next question is What law is appllo&ble, particularly as we oonsider that the only pint point really at issue in the case is whether or not there was 3uoh a waiver of the delay in shipment as would bar the defendant from oanoelling the contract, as he did, without first putting plaintiff in default.

It has been held by our Supreme Court:

"The Code it la true says that putting in default is a prerequisite to the recovery of damages, and of profits and faults or to the reoiasion of the oontraotJ C. 0, 1906; hut this rule ia modified by the provisions of a subsequent Article, in oases of active violation of oon-traot. The oreditor is under no obligation to put th« debtor in default, in order to entitle him to his aotion. C. C. 1926.*

Hillard vs. Farley, 15 Ann. p, 519,

Also see 119 ta. p. 793 et seq. Hennings-Heywood Oil Syndicate vs. Houssiere-tatreille Oil Co.

*362«C. 0. Art. 1913, asaking, putting in default» jiiaopi prerequisite to reoission of tne contract, applies only to contrasts whereof time is not of the essence.*

Putting in default before reoission of the oontraot as required by Civil Oode Art. 1913 is not necessary in suits for reoission or for fraud or error or for lesion beyond moiety., or for any other cause of nullity.»

139th La. 378, Watson vs. Feibel.

For the reasons assigned, it is ordered, adjudged and deoreed that the judgnent of the Gourt aqua be and the same is hereby affirmed, ooats of both Courts to be paid by plaintiff.

-Judgment afflrmed-