
    NO. 7355.
    ASCHENBACH & MILLER INC. VS JEFFERSON DISTILLING CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O P I H I O H.

3y his Honor John St. Paul.

Appeal from the Civi}. Pistriot District Court, Division "B" Ho. 118651*

which Plaintiff bought of defendant five barrels of denatured alcohol defendant agreed to ship on September 2nd.

Ihe petition alleges in substance that because the aloohol was not so shipped, plaintiff was obliged to pur-chase,at a much higher cost, •«»<»* other aloohol not denatured* and this suit is for the loss thus sustained. ít is further alleged that the reason plaintiff could not purchase denatured alcohol was that such alcohol could be obtained only on production of its special federal permit, which was then in defendantS’possession.

Annexed to the petition is plaintiff’s letter dated September 9th, from which we quote as follows; "Jo wired again this morning x x x and received your reply that you have not yet shipped but will ship >n the 12th. "his negligence on your part at the present moment appears as' if it would cost us over ,.1000 of business, x x x. In your previous letters you expressed a desire that our business relations would continue.^

¡íell wo are afrdad they are discontinued now, and they positively will bo if we have the loss."

Henoe plaintiff Anew on Sei’tember 9th that the aloohol had not yet been shipped, but would be shipped on the 12th; but instead of cancelling the sale, as it had the right to do, and demanding the immediate return of its permit so that it might purchase elsewhere, holding defendant for the difference if any, it remained content to warn defendant that a loss of business might result tod and that, if sO, their business relations would oease. Its letter contained not the slightest intimation that the contract was to be discelled, or that plaintiff meant to look elsewhere for the aloohol; on the contrary it is pregnant with the direction to go ahead -with the contract, even though it might be the last between them.

November 11th, 1918.

UMor tina oiroanetanoea we think plaintiff has no right of aotion. JCha remedy, the only remedy, for defendant’s remlesnesa in performing ‘its part of the contrast was as we have stated. But of this ########## plaintiff did not ehoose to avail itself. On the oontrary it delioeratoly waived it hy apbetantially directing defendant to •hip when it did. In other words plaintiff had the right to take the aleohol from defendant when it could get it, or it might refuse that aloohol and replsoe it elsewhere at defendant’s cost, hut it oould not do both, and' having exercised its choice it cannot nojr be heard to complain. So hold otherwise would be in effect to force the seller to make a second sale at the same price as the first, even though the goods might in the meanwhile have enhanoed in value, or tne first sale Itself have been a losing contract for the seller.

She Judgment appealed from is correct.

Judgment Affirmed.

Hew Orleans, la,  