
    (86 South. 675)
    No. 22152.
    KENNON v. BROOKS-SCANLON CO.
    (May 31, 1920.
    On Rehearing, Nov. 29, 1920.
    On Motion to Modify Decree, Dec. 11, 1920.)
    
      (Syllabus by Editorial Staff.)
    
    1. Appeal and error <&wkey;l099(3) — Plea of res judicata concluded by disposition of former appeal.
    Where, on a former appeal, the judgment dismissing the suit on plea of res judicata was reversed and cause remanded, such determination was a conclusive adjudication against the plea.
    2. Contracts <§=I0(I) — Contract lacking mutuality is void.
    A commutative contract lacking mutuality is void, and cannot possibly give rise to an action for damages for its breach.
    3. Appeal and error <§=1099(4) — Former decision held adjudication that contract was not bad for want of mutuality.
    Where, on former appeal, a judgment dismissing a suit on pleas of res judicata and want of mutuality of contract was reversed, such determination is an adjudication that the contract did not lack mutuality for if it did lack mutuality no action could be maintained thereon.
    4. Contracts &wkey;>10(4) — Contract by lumber company to deliver shavings held not to lack mutuality.
    Where a lumber company which burned most of the shavings of its planing mill agreed that if plaintiff would construct a blowpipe it would deliver to him the surplus shavings, plaintiff to make stipulated monthly payments, etc., the contract which required plaintiff, unless unable to accept the shavings, was not open to attack on the ground of want of mutuality.
    5. Evidence <§=93 — No burden of proof in action for breach of contract to deliver shavings on defendant as to matters in his knowledge only.
    Where defendant lumber company agreed to furnish plaintiff with shavings on plaintiff's construction of a blowpipe, etc., but after the federal court intimated that the contract lacked mutuality refused to perform, defendant did not, on the theory that the matter was peculiarly within its knowledge, have the burden of giving evidence as to the amount of shavings, etc., so as to establish plaintiff’s case.
    * On Rehearing.
    6. Sales &wkey;>4l8(4) — Measure of damage for breach of agreement to deliver shavings.
    Where defendant agreed that if plaintiff would construct a blowpipe it would furnish excess shavings from, its planing mill, in the absence of fraud plaintiff’s measure of damage for défendant’s breach of the contract in the absence of proof of any established market for shavings was the difference in price which plaintiff had to pay for fuel and the stipulated payments agreed upon, plus the expense incurred by erecting a blowpipe.
    7. Sales &wkey;>4l8(l5) — Where defendant broke contract to furnish shavings, plaintiff may recover only for expense of fuel and loss of sale to an established customer.
    Where defendant lumber company agreed that if plaintiff would erect a blowpipe and make stipulated payments, it would furnish him with excess shavings, the purpose of the agreement being to remove such waste produqt from defendant’s planing mill, plaintiff is not, where defendant repudiated contract on intimation by federal court that it lacked mutuality, entitled to recover damages based on markets thereafter created by defendant, but he may recover for loss of sales to an established customer, and for the difference between the price- he had to expend for fuel and the stipulated payments.
    On Motion to Modify Decree.
    8. Appeal-and error <&wkey;l 194(1) — Where judgment was reduced and affirmed, provision as to interest remains.
    Where a judgment which awarded damages with interest was reduced and affirmed, the provision as to interest remains, and interest on the amount as reduced may be recovered.
    Provosty, J., dissenting in part.
    Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.
    Action by E'dwin B. Kennon against the Brooks-Scanlon Company. From a judgment for plaintiff, defendant appeals.
    Amended, and as amended affirmed.
    R. C. & S. Reid, of Amite, for appellant.
    W. H. McClendon and Hall, Monroe & Lemann, all of New Orleans, for appellee.
   PROVOSTY, J.

The shavings produced by a planing mill accumulate so fast that they will soon block up the mill unless they are gotten rid of in some way. This led the defendant company to propose to plaintiff that he and it enter into the following contract:

“Kentwood, La., October ^27, 1906.
“Edwin Kennon, Kentwood, La. — Dear Sir: To confirm our agreement in accordance with conversation between the writer and yourself, we agree to furnish all the surplus shavings which we accumulate at our new planing mill on the following basis:
“You to pipe at your expense the necessary distance from the south end of our planing mill to your property or where you wish to deposit these shavings and in addition thereto we are to receive twenty-five ($25.00) per month for these shavings. This agreement is to be for five years with the privilege of renewal on the same conditions at that time.
“This letter is issued in duplicate and your acceptance on the face of the original letter and the duplicate for your own record serves as a binding agreement, until such time as regular contract is drawn up and duly s:gned by proper o^cer of this corporation.
“Brooks-Scanlon Company,
“By J. S. Foley.
“E. B. Kennon.”
“Memorandum of agreement made and entered into between Brooks-Scanlon Company, a corporation organized under the laws of Minnesota and domiciled in the city of Minneapolis, said state, party of the first part, and Edwin B. Kennon, a resident of the city of Kentwood, state of Louisiana, party of the second part:
“Witnesseth, that party of the first part hereby sells and agrees to deliver as hereinafter specified to said party of the second part, all the shavings manufactured at its new planing mill, not required for its own use in the operation of said mill; said shavings to be delivered to the electric light plant of the said party of the second' part where same stands now, through a galvanized iron blowpipe to be connected with the blowpipe system of said planing mill of the party of the first part. Said blowpipe to be constructed, properly connected and maintained by and at the expense of the said party of the second part. It being understood that said party of the second part shall have the privilege of extending said pipe over and across the lands of the said party .of the first part, during the life of this contract. Said pipe to be and remain the property of the party of the second part.
“It is further agreed and understood that if for any reason said party of the second part shall be unable to receive or take care of said shavings, said party of the first part shall, at its option, have the privilege of using the blowpipe for a reasonable length of time until other disposition can be made of the refuse shavings.
“For and in consideration of the above, said party of the second part hereby agrees to pay the party of the first part, the sum of twenty-five dollars ($25.00) per month payable monthly, for all shavings so delivered. It being understood and agreed that should said planing mill be shut down at any time for a period exceeding one week a proportionate amount shall be deducted from the amount to be paid monthly by the said party of the second part.
“It is agreed and understood that this contract is to be and remain in full force and effect for and during a period of five years from date hereof, with privilege of renewal by notice thirty (30) days before the expiration of said contract, for another five years and is to be binding upon the parties hereto, their heirs, administrators, executors and assigns for and during the time aforesaid.
“In witness whereof, both parties have hereunto set their hand and seal in the presence of T. H. Loggins and Geo. F. Hawley, lawful witnesses, this 19th day of November, A. D., 1906. Brooks-Scanlon Company,
“By John Schull, Treas.
“E. B. Kennon.”

The operations under this contract went on satisfactorily for 18 months, until an increase in the number of planing machines in defendant’s mill, and an expediting of the operation of the mill, with a corresponding increase in the quantity ol; shavings produced, created the necessity of some new arrangement being made for getting rid of the shavings. The blowpipe, owing to its insufficiency for taking care of the increased quantity of shavings, or to the greater power required for blowing the larger volume of shavings through it, would clog, and the mill would have to stop, or some of the planing machines would have to be stopped, or else the lumber running through them would have to be of smaller size, so as to produce a less quantity of shavings. This increase in the capacity of the mill, and the expediting of its operations, had become necessary as a consequence of a cyclone having blown down a much larger number of trees than could be taken through the mill as theretofore operated before the trees would deteriorate. Defendant proposed to plaintiff to discontinue the use of the blowpipe, and to use a wagon in its place for delivering the shavings in the bin of the plaintiff’s electric light plant where the blowpipe had been delivering them, all at the defendant’s expense; and, plaintiff refusing to consent to this change, defendant made it nevertheless. Plaintiff received the deliveries by the wagon, but under protest, and brought suit on the equity side of the District Court of the United States to compel defendant to carry out the contract.

To that suit the defendant filed a demurrer. The District Court sustained the demurrer without assigning reasons. Plaintiff appealed to the United States Circuit Court of Appeals, and that court affirmed the judgment, assigning as its reasons that the contract was lacking in mutuality, and, moreover, was not of a nature to justify a court of equity in ordering specific performance. See this judgment transcribed at page 518 of 132 La., at page 556 of 61 South.

Its date was March, 1911. On May 21 of that year defendant notified plaintiff that, in view of this judgment, which held the contract to be null for want of mutuality, the delivery of shavings would be discontinued at the end of the current month. Accordingly at the end of that month defendant discontinued the deliveries. And plaintiff thereupon brought the present suit claiming damages for breach of contract.

A plea of res judicata founded upon said judgment of the United States Circuit Court, and a plea of no cause of action, were filed by defendant, and were sustained by the trial court, and plaintiff’s suit was dismissed. Plaintiff appealed to this court; and this court set aside the judgment, and remanded the case for trial. See Kennon v. Brooks-Scanlon Co., 132 La. 518, 61 South. 556.

On September 23, 1911, while the present suit was pending, plaintiff had given notice to defendant that he desired to renew the contract for 5 years more; and on June 30, 1913, after the case had been remanded, plaintiff filed a supplemental petition, claiming additional damages. In the original petition plaintiff claimed $75,600 damages for failure to deliver all the shavings produced by the mill and not required for its use from December 1, 1908, to April 15, 1911, being at the rate of $7.50 per carload of shavings, and $2,000 for the cost of the blowpipe; and in the amended petition plaintiff claims $163,440, for the shavings not delivered during the 5 years, for which the contract was renewed.

Defendant filed pleas of res judicata and no cause of action to this amended petition, and contends that these same pleas filed to the original petition were not overruled by this court when this case was here on the first appeal and that said pleas should, now be sustained, and the suit dismissed. The trial court overruled the pleas, and defendant answered to the merits, and the case was tried, and resulted in judgment against de: fendant for $15,188.25. The exception of no cause of action is based on the supposed nullity of the contract for want of mutuality of obligation.

These pleas are the first matters, in regular order, to be considered.

These pleas, as applicable to the original petition, were the very matters presented to the court for decision on the former appeal. The pleas had been sustained by the trial court, and the suit dismissed; and this court, in disposing of the case, had necessarily either to sustain or overrule them. There was no middle ground. To sustain either of them, or not to overrule both, would necessarily cause a dismissal of the suit. The court not having sustained either of them, but having, on the contrary, reversed the judgment appealed from, which had sustained them, and having remanded the case for trial on evidence to be adduced, necessarily overruled both pleas. The. wording .of the decision is not as clear as it might have been made, but no amount of verbiage could alter the legal situation, which was that the pleas had to be either sustained or overruled; that if either of them was sustained, or both not overruled, the suit had inevitably to be dismissed; that by reversing the judgment which had sustained them, and remanding the case for trial, the court necessarily overruled them. The judgment which had sustained the pleas could not in the nature of things be reversed without the pleas being overruled; and neither of the pleas could in the nature of things be sustained without the suit being; as a consequence, dismissed.

Under these circumstances, the matter of the plea of res judicata is necessarily concluded by the judgment on this former appeal, and is no longer open to discussion.

And this is true of said plea also in so far as the demand of the amended or supplemental petition is concerned, for this petition does not propound a new cause of action, but merely brings into the suit the damages alleged «to have continued to accrue from the same cause of action.

And what is here said of the plea of res judicata applies equally to the plea of no cause of action. For actions speak louder than words, and even a Supreme Court protests in vain that it is not doing a thing when it is as a matter of fact actually doing it. A judgment cannot be set aside on appeal unless erroneous, and a commutative contract, lacking mutuality, is void, and cannot possibly give rise to damages by its breach. When therefore the court on said appeal set aside the judgment which had sustained the plea of want of mutuality, and remanded the case for trial on the question of damages, it necessarily overruled the plea of want of mutuality, and decided that there was mutuality and a valid contract, its verbal protest to the contrary notwithstanding. However, since the court did say that the plea of want of mutuality .was left open for reconsideration we will consider it.

On the part of the plaintiff the evident object of this contract was to procure fuel for his electric light plant, and on the part of defendant it was to get rid of the shavings without expense; the $25 monthly payment being stipulated, in all probability, as representing the estimated expense of blowing the shavings.

' Plaintiff was not to be at liberty to refuse at pleasure to receive the shavings, but oply if from any cause he was “unable” to do so. Smith v. Morse, 20 La. Ann. 220; Landeche v. Sarpy, 37 La. Ann. 835; Nelson v. Barber, 143 La. 783, 79 South. 403.

'fhe entire expense of installation was to. be borne by plaintiff; defendant was to be at no expense in that connection, so that if from any cause plaintiff became “unable” to receive the shavings, and the contract was thereby brought to an end, the defendant would have lost nothing, whereas plaintiff would have incurred the expense of the installation, which proved to be some $1,800. Nay, would even in that event have had the right to the use of plaintiff’s blowpipe and premises “for a reasonable length of time, until other disposition could be made of the refuse shavings.” Defendant was getting rid of the “refuse” without expense to itself; and plaintiff was incurring some $1,800 of expense, and' in addition was subjecting his blowpipe and his land to a right on the part of defendant to use them during a reasonable time' for getting rid of the “refuse” of its mill. Why such a contract as this should be thought to be without mutuality we do not see. A contract has mutuality when the reciprocal obligations under it are serious, and at the time the contract was entered into appeared to the parties to be sufficient. Saunders v. Busch-Everett Co., 138 La. 1049, 71 South. 153. In the case of the present contract the reciprocal obligations of the parties were most unquestionably mutually looked upon as being serious and sufficient, and they were so in fact; plaintiff -got value received in the shavings which he obtained for feeding the fire under the boiler of his electric light plant, .and defendant got value received in the installation which it secured free of expense for,getting rid of the refuse of its mill. Defendant enjoyed the benefit of this contract for eighteen months and could have gone on in the same enjoyment for 8 years longer if it had chosen to do so.

The Barnhart Case, 117 La. 1023, 42 South. 489, so confidently relied upon by the learned counsel for defendant, involved an oil lease in which the obligations of the lessor were counterbalanced by no obligation whatever on the part of the lessee except a cash payment of- $1 for obtaining the lease, and the obligation to pay $2 on exercise of the right reserved to retire at any time from the contract. Manifestly, in the contemplation of the parties in entering into the contract the receiving of these insignificant payments had not been looked upon as constituting the real object of the lessor in entering into the lease, .but what had in their contemplation constituted the real and serious object had been the developing of the land for oil and gas; and, since the latter was left optional with the lessee on payment of the trifling sum of $2, the court concluded that the contract was lacking in mutuality.

The other ease relied on (Goodson v. Yivian Oil Co., 129 La. 955, 57 South. 281) was also decided on its peculiar facts, a recital and analysis of which here would serve no useful purpose. ■

We do not understand that in the suit before the United States court a different conclusion was arrived at on this point. As we understand that decision, the conclusion there reached was that the contract, while perhaps enforceable at law, was lacking in that full mutuality which would justify a court of equity in lending its aid for enforcing the specific performance of it.

But when we come to consider the case on its merits we are struck at once by the utter extravagance of the amount ’of damages claimed by plaintiff. The record leaves no doubt whatever that at the time the contract was entered into the shavings in question were considered to be of no value whatever except in so far as it might be economical to use them in place of other fuel under the boiler of defendant’s planing mill and plaintiff’s electric light plant near by. Except the part used under the boilers of the defendant’s mill they had up to that time been an occasion of expense in being gotten rid of by being blown to a fire pile and burnt, and not of profit. 'Doubtless before this contract had been entered into instead of thus burning them in pure waste, defendant would have been perfectly willing to let plaintiff have as much of them gratis as he might have wanted for fuel if plaintiff had been willing to handle them by means of a wagon. And when plaintiff installed the blowpipe for conveying them economically to the furnace of his boilers, he thus utilized only about one-tenth of them: the other nine-tenths being conveyed by means of a fork in the blowpipe to a fire pile to be there consumed in pure waste. And this went on for 18 months. During that time plaintiff had succeeded in disposing of some to the local ice plant, and also for a short time to another plant, and of an insignificant quantity for other uses. When plaintiff filed his suit in the United States court in December, 1909, 3 years and 1 month after the contract had been entered into, he alleged, under oath, that these shavings were “not a staple article or produce, having a fixed value upon the market; that the same is not generally for sale upon the market at all; that up to a very short time ago same was considered of little or no value, and of no use.” So true is it that these shavings were considered to be of no value that in making the contract plaintiff expressly stipulated the right to discontinue receiving them “if for any reason,” he should “be unable to receive or take care” of them, meaning, evidently, if the use of them for fuel in his plant ceased to be economical.

In this suit in the United States court plaintiff alleged on his application for a rehearing, as follows:

“That your petitioner has no adequate remedy at law, first, because the shavings to which your petitioner was entitled under his contract, cannot be replaced; second, because their market value cannot be calculated; third, because it is impossible to estimate the damages caused to your petitioner by the refusal of the BrooksSeanlon Company to complete its contract with petitioner on the terms agreed on.”

Between the time of the filing of those allegations and’the time of the filing of the present suit no change had taken place in the situation, so far as the record shows; and yet we find the petitioner in the present suit fixing the amount of the damages at $239,060. The inconsistency between plaintiff’s allegations in that suit and in this is as glaring as the amount of damages claimed is extravagant.

Ordinarily the measure of damages for the vendor’s breach of his contract is the difference between the contract price and the market price of the commodity sold. The shavings never had a market value; hence that rule is totally inapplicable to this case. Apart from their use as fuel for plaintiff’s plant they had value to amount to anything only in the proportion in which plaintiff might succeed in inducing industrial plants to adopt them as fuel. This because of their lack of density, their featheriness, as a consequence of which they could be used profitably only in great bulk, whereby the handling of them in commercial use was made well-nigh prohibitively expensive. And, moreover, industrial plants could adopt that kind of fuel only by making changes in their furnaces for adapting them to it. I-Iow far plaintiff could have succeeded in inducing any number of them to do this is left by the record entirely to be conjectured. Defendant has used its best endeavors in that direction; and, although in a much better position thán plaintiff would have been in for succeeding— it being a very large lumber concern of long standing, with business connections throughout the country, and the producer of the shavings, and able to mix with them ground wood called “hog product,” rendering them much more available as a commercial article — it has had but partial success; has had to continue to burn a large proportion of them on a fire pile in pure waste as in the past, and as plaintiff had to do while he had the full opportunity to dispose otherwise of them.

Plaintiff measures his damages by taking the price per carload, $10, which the defendant company has been receiving from the Magnolia Cotton Mills, and estimating the quantity of shavings that have been and would be produced by the mill, and estimating what would have been the cost to him of loading the cars. He assumes that his estimates of quantity are sufficiently certain to serve as a basis for judgment, and assumes that he would have had cars regularly for all shavings he would have wanted to ship, and customers for the entire output of the mill.

There is uncertainty as to the quantity of the shavings produced by the mill, and still greater uncertainty as to what part of the shavings produced was required for defendant’s own use in the operation of its mill. Under- the contract, only the surplus was to be delivered to plaintiff. Thére is also uncertainty as to the ability of the plaintiff to have had satisfactory railroad service, or to have found customers for any considerable part of the shavings, let alone for all, or for what part, and, of course, plaintiff can recover only for the value of the shavings he could have used himself or disposed of at a profit, and the amount of this profit would have to be established with reasonable certainty. Dwyer Bros. v. Tulane Educational Fund, 47 La. Ann. 1233, 17 South. 796; Armistead v. Shreveport & R. R. Val. R. Co., 108 La. 171, 32 South. 456. Profits dependent on the chance of securing purchasers for an article the market for which would have to be created-, are too uncertain to serve as a basis for judgment. “When profits are spoken of as not recoverable, reference is generally had to the profits of dependent and collateral engagements, or those contingent upon future bargainings, speculations or states of the market.” 8 R. C. L. 504.

“In Atchison, T. & S. F. R. Co. v.'Thomas, 70 Kan. 409, 78 Pae. 861, the defendant had given the plaintiff the right to sell 4,800 watches of a certain model to the defendant’s employees, and had agreed to collect for the plaintiff’s orders which might be given by its employees in payment for such watches. Subsequently, and after 726 watches had been sold, the defendant refused longer to collect employee’s orders. Recovery of the loss of anticipated profits on the remainder of the watches was denied as too speculative, remote, and contingent, there being no agreement or assurance on the part of the defendant that the plaintiff would be able to sell any specific number of watches. The court, referring to earlier Kansas cases in which recovery of lost profits had been allowed, said that in each of them the business upon which profits were allowed was not new or untried, but had been established and carried on to such an extent in the community that a safe basis of calculation could be found.” S L. R. A. (N. S.) 256.
“Whenever profits are spoken of as not a subject of damages, it will be found that something contingent upon future bargains, or speculations, or states of the market, are referred to, and not the difference between the agreed price of something contracted for and its ascertainable value, or cost.” Philadelphia, W. & B. R. Co. v. Howard, 54 U. S. (13 How.) 307, 14 L. Ed. 157.

The remarks of Mr. Justice Story iu Schooner Lively, 1 Gall. 315, quoted in Griffin v. Colver, 16 N. Y. 492, 69 Am. Dec. 720, are very apposite in the present connection:

“Independent, however, of all authority, I am satisfied upon principle that an allowance of damages, upon the basis of a calculation of profits, is inadmissible. The rule would be in the highest degree unfavorable to the interests of the community. The subject would be involved in utter uncertainty. The calculation would proceed upon contingencies, and would require a knowledge of foreign markets to an exactness in point of time and value which would sometimes present embarrassing obstacles. Much would depend upon the length of the voyage and the season of the arrival, much upon the vigilance and activity of the master, and much upon the momentary demand. After all, it would be a calculation upon conjectures, and not upon facts.”

The quantity produced, by the mill was uncertain for several reasons: The mill was not operated regularly; the quantity of shavings produced varied a good deal according to the kind of lumber that -was being run through the machines; and the amount of the surplus was still more uncertain because the consumption by the mill under its boilers varied according to the quality of the shavings.

The railroad service was more or less unreliable because' of the inability of the railroad to furnish cars or transportation at certain times when the traffic was congested. And yet for a satisfactory use of shavings as fuel under boilers a regular or dependable supply was requisite. Even to the Magnolia Mills, only 15 miles distant, defendant found it impossible to satisfy entirely this requirement of regularity. Eor overcoming in part this difficulty the defendant company provided itself with cars of its own; but the hauling of the cars remained a matter dependent upon the conditions of the traffic upon the railroad.

The estimates of plaintiff as to the quantity of shavings that had to be delivered under the contract are so unreliable that no practical man would, we are sure, think for a moment of adopting them as a basis for fixing the lump price of a sale, and no court as a basis for judgment.

Realizing the inadequacy of the evidence produced by him on this point for attaining the degree of certainty required in a suit of this kind for making out a case, the plaintiff resorts to the contention that the burden lay with the defendant to make the proof of what was the surplus of shavings, because of the better opportunity defendant had for ascertaining what this surplus was. In support of that contention, his learned counsel rely upon the eases of Crescent City Ice Co. v. Ermann, 36 La. Ann. 841; Pruyn v. Sheriff, 51 La. Ann. 323, 25 South. 125; Bastrop Bank v. Levy, 106 La. 586, 31 South. 164; Johnson v. Levy, 109 La. 1036, 34 South. 68. In the first of these cases, the plaintiff ice company, located in New Orleans, sued for the price of a number of shipments of ice made to the defendant, an ice dealer in a distant city. The defense was that the ice had not been sold to defendant, but to some one else who had sold it to defendant. Plaintiff called upon defendant to produce the invoices; and the defendant failed to do so. The court said:

“The presumption is always and inevitably against a litigant who fails to furnish evidence within his reach, and it is the stronger, when the documents, writings, etc., would be conclusive in establishing his case.”

In Pruyn v. Sheriff, 51 La. Ann. 323, 25 South. 125; the issue was as to simulation vel non of a sale of real estate. The vendor having continued in possession, the court held that this shifted the burden of proof to the purchaser to show the reality of the sale, and that this burden was not discharged by the single testimony of the purchaser, but that as the vendor could have been called as a witness, and was not called, the inference was that if he had been called his testimony would have not corroborated that of the purchaser. In Bastrop Bank v. Levy, 106 La. 586, 31 South. 164, the bank sued defendant for an overdraft. The check of the defendant showed what amount had been drawn; but the amount of the deposits could not be shown positively because the cashier by whom alone this-proof could have been made was dead. The bank having made out a prima facie case by the production of its books and of evidence showing the inability of defendant to have made larger deposits than those credited to him, and by showing that he had failed to claim further credits when before suit brought the offer was made to him to allow whatever further credits he might be able to substantiate, whereas he had admitted that he knew that he had overdrawn .his account, the court held that the burden of proof had shifted to him, and that his failure to go upon the stand, although present at the trial, would be construed into an inability on his part to testify to the contrary of the claims of the plaintiff. In Johnson v. Levy, 109 La. 1036, 34 South. 68, the court said:

“The contention of the defendants that the accommodation drafts drawn on Jacques Levy by Armand Levy were in the name of the latter alone is negatived by the testimony. Many of them were drawn by him in the name of Marx Levy & Bro.
“If it were as defendants contended for, the evidence was accessible to them to show it conclusively. They took the testimony of Jacques Levy under commission, and as he had paid the drafts he had them in his possession, and the best evidence as to the manner of their drawing would have been the production of the drafts themselves. This was not done. 1-Iis counsel did not call for them.
“When effective proofs are within the reach of a .party and he fails to produce them, a presumption is raised that they would, if produced, make against him.”

These decisions do not dispense a plaintiff from making his case certain, or require the defendant to make it certain for him, even though the means of making such proof was more available to defendant than to plaintiff. They merely apply the principle of evidence which is expressed in 10 R. O. L. 902, as follows:

“As a general rule the. omission by a party to produce important testimony relating to a fact of which he 'has knowledge, and which is peculiarly within his own reach and control, raises the presumption, open to explanation of course, that the testimony, if produced, would be unfavorable to him.”

At page 884 of the same work this principle is expressed as follows:

“The conduct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of defense if he is defendant, is honest and just; just as it is evidence against a prisoner that he has said one thing at one time and another at another, as showing that the recourse to falsehood leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. And so it has become a well-established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so, the jury may draw an inference that it would be unfavorable to him. Lord Mansfield’s maxim ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted,’ has frequently been quoted with approval. Neglect to produce demonstrative evidence by a party who has it in his power justifies the inference that it would operate to the prejudice of his contention.”

Elliott on Ev. yol. 1, p. 194, par. 141, as follows:

“It is frequently said that a party is not bound to prove a negative, nor a fact peculiarly within the knowledge of the opposite party, and that the latter may have the burden of disproving it, but the mere form of an averment is of little consequence, so far as the rule as to the burden of the issue is concerned, and if, in. order to establish his case and move the court in his favor, a party must prove a negative, the burden is usually upon him to do so. As a rule it is only where the fact negatived is peculiarly within the knowledge of the adversary that the burden is, in any sense, shifted to the latter, and even then it is the burden of going forward rather than the burden of ultimately establishing the case. The fact that the party having peculiar knowledge of a matter fails to bring it forward may raise a presumption or justify an inference in favor of his adversary’s claim, and thus shift the burden of proceeding in order to win; but the burden of establishing the issue is not shifted, nor is it, ordinarily, determined in the first instance by the mere fact that a negative is involved, or that some fact is peculiarly within the knowledge of the adverse party.”

Whatever evidence defendant had in its possession was on its books, and was available to plaintiff upon request; in fact, was called for and produced. Defendant did not have to keep an account of the shavings, if such a thing had been possible, in order that the data thus procured might be at hand for proving up plaintiff’s case; nor was defendant under any obligation whatever to take any steps for ascertaining what was the quantity of shavings produced, and what quantity was consumed by the mill. Defendant had a perfect right to take no steps towards getting up evidence until plaintiff had made out a case. Counsel say that every presumption must be against defendant. But if every presumption were indulged, the quantity of shavings produced by the mill and the quantity consumed by it would be as’ uncertain as ever.

Plaintiff sold some shavings locally, but, apart from this, never was in a position to dispose of any at a profit. He says it was because he was not equipped with the facilities for loading them into the railroad cars; but during the 18 months during which he was receiving delivery by the blowpipe he did not provide himself with these facilities, and by the time the contract was discontinued he liad not progressed in that direction beyond having a survey made for laying a switch track and getting estimates of the cost. How long the providing of. these facilities would have taken is not shown; in fact, whether plaintiff would have ever considered the prospect of disposing of the shavings by rail shipment as justifying the outlay is left in doubt by the circumstances of the case taken as a whole. On cross-examination plaintiff was asked to state where he could have disposed of the shavings. He answered:

“To other plants where they were generally consumed. Q. Name them? A. I think this plant here would have used some of them. Q. You think so? A. Yes, sir; I had a man in charge here; said he could use them. Q. Who else? A. And also the Hammond Ice Manufacturing & Power Plant, the light plant at Hammond. Q. The light plant in Hammond is run by Mr. James Jummonville, and the one in Amite? A. By Mr. Richardson. Q. Did you have an offer from them, or either of them, to take any of the business — shavings made by the planing mill of Brooks-Scanlon Company? A. If I could load them in the cars, they wanted enough to supply their requirements to run the plant on. Q. Is that proposition made in writing? A. No, sir.”

We have not been able to ascertain from the record what plant the plaintiff had reference to by the expression “this plant here”; and beyond the statement just quoted there is nothing in' the record to show that the Amite plant would have taken any shavings. Mr. James Jummonville of the Hammond plant was called by plaintiff as a witness. He testified that he used slabs and “hog product” at his plant, and at no time contemplated a change of fuelthat he remembered having had a talk with Mr. Kennon “several years ago,” but does not remember the nature of it; that he uses no shavings, and same would be more expensive than slabs or “hog product.” The evidence shows that shavings as fuel is not desirable for a plant unless a regular supply can be assured, and that this is difficult because of the uncertainty in securing cars, and the irregularity in the running of the planing mill. The defendant company, selling shavings and “hog product” to the Magnolia Mills, has not been able to do so satisfactorily, owing to the difficulties here mentioned. To obviate one of these difficulties, the defendant company has provided cars of its own. Whether plaintiff would have been willing to incur this expense is not certain. Whether plaintiff could have sold any shavings except locally by wagon delivery is not certain. What amount could have been disposed of locally, except to the Kentwood Ice Plant, is left altogether uncertain.

We find ourselves entirely unable to fix the damages suffered by plaintiff in any amount whatever. Not even the value of the shavings to be consumed in his own plant. Not even the value of the blowpipe after the1 storm had blown it down, except that part of it known as the “dust collector,” which was not damaged, and cost “in the neighborhood of $125,” and which if the contract had not been breached, and the blowpipe had been restored, would have continued, we assume, to represent that much value, but which, except as a part of the blowpipe system, was mere scrap iron and worthless.

To that extent plaintiff’s case may be considered to be established with sufficient certainty for judgment.

It is therefore ordered,. adjudged, and decreed that the judgment appealed from be reduced to $125, and that, as so reduced, it be affirmed; plaintiff to pay the costs of appeal.

MONROE, O. X, takes no part.

On Rehearing.

DAWKINS, X

On this rehearing the only question remaining before the court is as to the amount of damages which the plaintiff should recover; all other issues, including the fact of the breach of contract and the liability of the defendant for such damages as may have been proven, having been concluded by - our former decree which denied the application of defendant for a rehearing.

The nature and character of the proof tendered by the plaintiff were fully discussed in our former opinion, as well as the difficulties and uncertainty confronting us in an effort to find a substantial basis upon which to ground a compensatory judgment in his favor.

We have again carefully considered the matter, and are still strongly impressed with the idea that the principal motives and considerations actuating the parties in making the contract were, as to defendant, the disposing of what was then viewed as a waste product, which it would otherwise have had to burn at some expense to itself; and, as to plaintiff, the controlling purpose was the obtaining of a supply of cheap fuel. This is borne out by the fact that defendant had been making no other disposition of the shavings prior to that time (burning them), and for 18 months after the making of the contract only a limited portion was. used by plaintiff for his own fuel; the remainder being burned as before. We do not think, therefore, that it was reasonably within the contemplation of either party that any such enormous profits were to be made as those claimed by plaintiff, and really doubt that even the latter himself thought of such a thing at that time, and until long after the contract had been made. As pointed out in our former opinion, this view is very strongly supported by the solemn allegations of the plaintiff in. his pleadings in the federal court that the shavings had no market value.

Under these circumstances, in the absence of fraud or bad faith, all that plaintiff would have been entitled to recover for the breaching of the contract was the difference in the price which he had to pay for fuel, plus such loss as he may have suffered by the expenditures in erecting the blowpipe to handle the shavings.

Defendant seems to have carried out its part of the agreement for 18 months, and until legitimate circumstances of its business (referred to in our former opinion) made it impossible to dispose of the entire waste in that way, when it adopted the plan of delivering the product to plaintiff to supply the needs of his plant by wagon. It was at this point that the suit in the federal court was instituted to compel specific performance by use of the blowpipe, and which that court declined to enforce. This took the controversy up to 1911, and no doubt it was because of the strong language of that court, which held that tnere was a lack of mutuality in the contract, that actuated the defendant in declining to proceed further with delivery from May 31st of that year.

As was said in the original opinion herein, we do not think plaintiff should be permitted to avail himself of the markets and facilities which defendant created for disposing of the surplus shavings. The reasons therein given, we think, are sound.. However, the proof is positive that the Kent-wood Ice Company was a customer of plaintiffs for these shavings before defendant decided to refuse any further deliveries, and according to defendant’s own records, between June 1, 1911, and September 30, 1914, it (defendant) actually sold and delivered to and collected from this customer of plaintiffs $2,934 for the same shavings which we have every reason to assume plaintiff would have sold. The record also indicates that plaintiff would at least have been able to continue the sale to the Kentwood Ice Company, for the remainder of the life of his contract, that is, until November 19, 1916. According to our calculations, this would have .given him, at the same rate of $75.20 per month, an additional profit of $2,100, or a total from this source of $5,034. In view of the fact that defendant discontinued the delivery of the shavings altogether, we think that it did so at its own risk, and was acting in legal bad faith after May 31,1911, and that plaintiff is entitled to recover for the consequential damages which he has proven with legal certainty, and the item thus mentioned we find has been so established. R. C. C. art. 1934.

As pointed out by defendant’s counsel, it affirmatively appears from the record that plaintiff paid for these same shavings for fuel at his light plant, not counting times when it was operated in the daytime, an average of $117.50 per month, including the expense of hauling, which he would not have had to incur if defendant had continued the use of the blowpipe. Hence we think plaintiff is also entitled to recover at the rate of $117.50 per month, as the cost of his own fuel, from June 1, 1911, to November 18, 1916 (the date of the expiration of the contract under the right of renewal) a period of- 65% months, or a total of' $7,696.25. From this latter amount must be deducted the $25 per month (for 65% months) which plaintiff had to pay defendant under the contract, or $1,-637.50, as well as the estimated cost of repairing the blowpipe after it was blown down in September, 1909 (which repairs defendant refused to permit) of $182.90, or a total to be deducted of $1,820.40, and leaving balance, due plaintiff on account of his own fuel, of $5,875.85.

For the reasons assigned, it is therefore ordered, adjudged, and decreed that our former decree be set aside, and the judgment appealed from be, and the same is hereby, amended by reducing it to the sum of $10,909.-85, and, as thus amended, it be affirmed; plaintiff to pay the costs oí this appeal and the defendant the costs of the lower court.

MONROE, O. J., takes no part.

For opinion of PROVO STY, J., dissenting in part, see 86 South. 683.

On Motion to Modify Decree.

PER OURIAM.

Counsel for plaintiff has filed in this case, since the decision on rehearing, a motion suggesting that our decree on rehearing does not make it plain as to whether the interest allowed at the-legal rate by the lower court was also affirmed. We can see no occasion to construe or misinterpret the decree in question, for it merely reduced the amount of the judgment in plaintiff’s favor, and affirmed the same in all other respects, which necessarily carries with it the affirmance of the judgment of the district court allowing legal interest as therein set forth.

MÓNROE, O. J., takes no part.  