The Queen Incubator Co. in February 1923, brought an action in the Lucas Common Pleas against defendant to recover for goods sold and delivered in the sum of $344.50, with interest from July 1, 1922.

The Merrell Co. filed a general denial attacking the corporate capacity of plaintiff, and for its cross petition alleges that on January 20, 1922, it entered into an oral contract with plaintiff, which was later confirmed by letters whereby it was to distribute plaintiff’s products in certain territory for the season of 1922-3; that it had taken orders for $6,-992.70 worth of these products when plaintiff notified it that it would not comply with this contract, that it thereby lost the profits it would have derived from said orders in the sum of $909.06, that these products could only be obtained from plaintiff and prays judgment for $909.06.

The allegations in the cross petition were denied by plaintiff in error.

On the question of the orders taken, the disposition of them and the question of damages, plaintiff offered no evidence. They are as follows:

1. That it had taken orders for Queen products which at its selling price amounted to $4545.25.

2. That these products at the prices quoted by plaintiff would have been billed to it for $3636.19.

3. That its gross anticipated profits on all these orders would have been $909.06.

4. That on October 20, 1922, it had in stock unsold 71 Queen brooders and incubators which it could have applied on these orders. (Its deliveries on these orders did not begin until January 1923.)

5. That in October, 1922, it had procured from Schaffer & Company of Decatur, Indiana, an offer to furnish it with all the Queen products it would need to fill these orders for $4088.72 or an advance of $452.52, but with a saving of freight and handling expense as Schaffer & Company offered to ship direct.

6. That it did fill 20% of these orders with Queen products.

7. That it did fill 35% of these orders with other products of a similar character.

8. That it accepted cancellations of 24% of these orders.

The Court of Appeals affirmed the judgment of the Common Pleas for The Merrell Company for $449.69.

The Incubator Company in the Supreme Court, contends that the Court erred in charging the jury that it might fix an amount which will compensate the Incubator Company because the measure of damages is the difference between the contract price and the' current market price of the goods.