
    (123 So. 719)
    No. 27608.
    LEXINGTON CANDY MFG. CO. v. PREJEAN.
    July 8, 1929.
    
      John B. Martin, of Donaldsonville, for appellant.
    O. C. Weber and Chas. T. Wortham, both of Donaldsonville, for appellee.
   LAND, J.

Petitioner obtained against the curatrix of defendant, for the breach of a contract to deliver sugar, a judgment in the sum of $3,196.22, with legal interest from November 13, 1919, until paid. The curatrix appealed, and later defendant was made party defendant and appellant by the order of this court.

The facts of the case are as follows:

The defendant is a sugar planter and sugar manufacturer, engaged in business at the Halfway plantation and sugar factory in Assumption parish.

On August 23, 1919, defendant entered into an agreement to sell to petitioner 200 barrels of sugar, to be delivered out of the first sugar made at the opening of the grinding season of the year 1919, or shortly after the 1st day of November, 1919. The sugar was to be delivered to the railroad for shipment f. o. b. Halfway plantation, at the price of 40 cents per 100 pounds less than the selling price quoted by the American Sugar Refining Company on the day of the shipment of the sugar.

In compliance with his contract defendant shipped and delivered to petitioner 100 barrels, the first two lots of sugar made by him, and for which he was paid by petitioner the sum of $3,297.78.

At the date of delivery, the price of standard sugars in barrels was 9 cents per pound, and the contract price at which 100 barrels should have been delivered was $S.60 per 100 pounds.

Defendant, however, insisted that the highest price of the American Sugar Refining Company should be taken as the contract price, and, as a concession on the part of petitioner, defendant was paid this price, which was slightly more than the contract price.

When lots 3 and 4 were made at the factory, defendant asked petitioner as a .favor to allow him to sell these lots in the open market so as to reap the benefit of the high prices then prevailing for Louisiana plantation sugar. Petitioner consented, under the promise made by defendant, to deliver the remaining 100 barrels, lots 5 and 6, out of the next strikes of sugar.

On November 13,1919, as such strikes were being completed, a representative of petitioner made demand on defendant for the delivery of the remaining 100 barrels of sugar, but defendant refused to deliver same.

During the entire month of November, 1919, the prices of sugar were regulated by the United States government, and the selling price for the American Sugar Refining Company was fixed by the government during the whole of that month at 9 cents per pound for sugars in barrel. If defendant had delivered the last 100 barrels, he would have been entitled to be paid therefor the sum of $3,297.-78, which was the price of the first 100 barrels of sugar, with the concession made to defendant.

During the grinding season of 1919, the United States government permitted plantation sugars, the class of sugar defendant contracted to sell to petitioner, to be sold at the price of 17 cents per pound.

As petitioner needed 'the 100 barrels of sugar in its candy making business, and as no sugar was at that time available at 9 cents, petitioner could not obtain the amount of sugar required from the American Sugar Refining Company, and was compelled to purchase in open market and to pay for the 100 barrels of sugar prices ranging from 22 to 28 cents per pound, but, since petitioner could have replaced' the sugar on November 13, 1919, the day the contract was breached, at 17 cents per pound, petitioner claims the right to recover only on that basis.

The 100 barrels of sugar are therefore priced by petitioner at the cost of $6,494, or 17 cents a pound. The contract price for the sugar was $3,297.78. Petitioner is therefore' entitled to recover against the defendant, Sylvere Prejean, the difference, or the sum of $3,196.22, with legal interest thereon from November 13, 1919, until paid.

It is ordered that the judgment appealed from be amended by substituting Sylvere Prejean as defendant, and that the judgment, as amended, be affirmed.  