
    No. 3495.
    (Court of Appeal, Parish of Orlenas)
    J. C. GREEN, vs. FARMERS CONSOLIDATED DAIRY CO. LTD.
    Issue of fact only are involved herein.
    Appeal from Civil District Court Division E.
    .G-. Fernandez, and B. B. Howard, Plaintiff, Defendant in Reconvention, Appellee.
    Cage Baldwin vs. Crabites, Defendant, Plaintiff in Reconven-tipn and Appellant.
   DUFOUR, J.

The plaintiff claims a balance alleged to be due him under a contract to furnish defendant with milk; the latter reconvenes on the ground that plaintiff violated his contract and failed to furnish the milk at a damage to defendant of $1680.

June 17th, 1904.

The district judge in allowing plaintiff’s claim and rejecting the reconventional demand said:

“Evidence not sufficient to prove damages under reconventional demand. Besides it was the duty of defendant to have minimized damages by buying milk at an advance on the price as did its witnesses and others.”

This conclusion is correct both as to law and to fact.

The testimony of defendant’s manager is confused and unsatisfactory. He says that he tried to buy milk and could not get it and, again, “that he could get some but at a far higher price, “and” well, by paying stiff prices for it, I got some milk, but I didnt get enough.”

Defendant’s other witness somewhat impairs the testimony of the first He says:

“Well, you know, it all depends upon who it was that wanted to buy the milk, or who wanted to purchase it. If a customer came to me and wanted to purchase it, I would get the milk for him and sell it to him.”
Q. “What I mean is this: If, a man has no contracts for milk, and he suddenly wants a regular supply of fifty or sixty gallons per day, can he obtain that quantity without difficulty, or without paying a large price, above the regular market rate, during the winter months?”
A. “Well he would have to pay a little more for it.”

We incline to the view that defendant failed to buy in open market, as it might have done, and thus minimized and fixed the damage, the profit it might have made if plaintiff had continued shipment is-not a safe or proper basis for their claim.

Judgment affirmed.  