
    No. 7654
    Court of Appeal — Parish of Orleans.
    Schmidt & Zeigler, Limited. versus V. S. Dantonio & Company.
    Dinhelspiel - J,
   This controversy is based on a written agreement entered into between plaintiffs and defendants as followa;-

" 11- 16- 18- V. S. Dantonio, 250 cases of Olive Oil to be taken out as needed in one year from date. Cases- O.uarts ¶5.00. Pints §5.15, as wanted, two per cent for cash'1. Signed- V. S. Dantonio",

The petition alleges that, on the 16th. November, 1916, by written contract, they purchased from defendants herein, 350 cases of Italian Beauty Olive Oil at a price, Quarts §5.00. Pints §5.15, which contract is hereto annexed and made part of the petition, and under the terms of said contract delivery was to be made to petitioners within one year from the date of said contract as required and requested by petitioners.

They further allege that, defendants from time to time delivered under said contract, unto petitioners, 130 cases of said oil, but refuses to deliver to petitioners the remaining 130 cases due under said contract*.

That petitioners have made repeated demands on defendants to make delivery of the remaining 130 cases o¿ oil, and on October, 39th. 1917 placed defendants in default, and that the balance of the oil 130 cases has never been delivered to petitioners.

Petitioners finally claim, that the advance between the purchase price and the market prioe at which said oil had been sold to other merchants in this City at the time was §3.75, per case in excess of the agreed price, and therefore they are entitled to that difference on 130 cases of oil amounting to the sum of §450. for which they pray for judgment in their favor.

There was an exception filed which pleaded, that if the petition herein is predicated upon the contract quoted, that same shows no cause of action.

This exc eption being overruled, defendants answered, denying that they intended or purported, that the memoranda filed hy plaintiffs and signed by one of the defendants was in the nature of an absolute contract-t for the purpose of sale of the stated quantity of olive oil at the fixed price, and aver that said memoranda upon which plaintiffs have based their claim was not a binding contract, because they would be held bound to sell without any obligation on the part of plaintiffs to buy.

They further allege, that they offered a quantity of olive oil in June 1817, but plaintiffs refused to accept the terms of it, .and further aver, that the memoranda as such was not a contract, and therefore they can not be liable thereon, and pray that the suit be dismissed.

It is evident to our minds, that the writing was an absolute contract between the parties. It contains all the elements of a sale, the quantity is certain, the price fixed and the term of delivery Haató, and both parties were bound thereby. C. C. Art. 1S30,"Damages for violation of contract. The obligations of contract extending to whatsoever is inoident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages which the other party has sustained by his default".

Art. 1334. Civil Code, "Damages.; Measure. I.'hen the object of the contract is anything but the payment of money, the damages due to the creditor for its breaoh are the amount of the loss he has sustained, and the profit of which he has been deprived."

A distinction between the case quoted by defendants in 36 Ann. page 35, Campbell vs. Lambert, and the one presently considered is very evident.

Ir, the case referred to, amongst other things, the Court ¿oes on to say» at page 36: "From January to June, the price was such, that defendants could have supplied coal under their agreement without loss. During this period plaintiff oraered of them less than 1500 bhls. of the ou.uuü. uora, , rouctner with 20.000. bbls., more to oe o.elivered;" and the Court goes on to say that, “from • June 1st, coal be¿an to advance and on ths 1st of September, 187S,-a disastrous storm occasioned by the sinking of a large coal fleet lying at this port, this caused a large advance in price and a consequent increase in the size of plaintiff's orders on defendant, hence it vías utterly impossible under the circumstances to deliver the amount of coal required for reasons etated".

The Court in that case referred to a prior case in the 35 Ann. Campbell vs. Short, page 447, where the Court said: - Syllabus:- "In a contract for delivery of coal by one of the contracting parties to the other within a given time and the contract is silent as to the quantity, parole evidence is admissible to show the real intentions of parties in this respect and explain its meaning." And at pabe 44S: - "The contract is silent as to precise quantity of coal defendants would or could order within the tice prescribed", and therefore helo, the contract not binding.

TTe have carefully read all the evidence, and it would be idle to go into details as it would accomplish no results.

In this case, defendants were dealers ir. olive oils, had the goods on hand, and from time to time as requested by plaintiffs rraae deliveries. The contract was fixed and determined, there was nothing uncertain or evasive. Under said contract defendants delivered 13C oases of oil as requested, and only on account and because the price of oti advanced subsequently they failed to comply with their oontract.

It has been shown that defendant» sold to the firm of J. & M. Sohwarbaoher for $7.90, per cage, which waa resold up to $9.50, and $11.00, per case.

Plaintiffs have proved that the fair value of the difference is $3.75, per oase for ISO oases, for which, in our opinion they are entitled to judgment. C. C, Art, 1938. Then follows, Southern Saw Mill Co. Limited, vs. Ducote, 121 La. 1052, alas, 110 U. S. 339.

The Judge of the Court aquo sb held and we find his jud -cement to be correct.

Judgment affirmed.  