V. S. Dantoni & Co. v. Francisco Bertolli & Co.

Dinicelspiel; J. This litigation arises under the following facts: Plaintiff alleges the failure by the defendant to deliver to him according to telegraphic} orders, two hundred gallons of olive oil whioh he purchased at $4.30 a gallon and for which he hod sent e. telegraphic money order as demanded by defendants, for One Hundred Dollars, on account of purchase prioe ánd that on January 31st, 1919, plaintiffs wired defendants! "Please wire lowest price and terms, two hijndred gallons olive oil, .five gallon cans"; and thft on the same day the defendant's wired in response to the telegram: "Lowest prioe, two hundred gallons olive oil, five gallon cans $4.30 per gallon, f.. o. b. Hew York, payment advanoe one hundred dollars,balance sight dfcaft against bill of lading; wire immediately". Plaintiffs further 'allege that 'in response to the latter telegram, on January 33nd, the next day, he remitted the one hundred dollars and in a telegraphic message "ship me through Morgan Line, t\jo hundred gallons olive oil; this one hundred dollars confirms your request". Subsequently on the next day, January 33rd, defendants "»oknowledged receipt of the One Hundred Dollars, account payment of the two hundred gallons cf olive oil ordered by you received, will ship by Morgan Line". Plaintiffs allege further that relying on the agreement thus oonveyedj he had mads a sale of the oil in .question at $5.50 a gallon, semejo be delivered to purchasers on arrival in Hew Orleans, on January 37th, 1919, as expected under the agreement; thus making profit of $340.00. And alleging that defendants instead of complying with this agreement, failed so to do.and d^d not ship Vfte order at onoe by the Morgan Line whioh they should and could 'nave don*, delaying shipment of oil to such an extent that the prioe of oil dropped One Dollars a. gallon after the expected time of [335] arrived, of «ata a'óns'igttíüéat Jtó'HaTf Orleans, and they therefore were deprived of an additional profit,because the sale oould not be made at the agreed prioe and lost a dollar a gallon or an additional two hundred dollars. That the sales made for two hundred gallons of oil were oanoelled by the purchasers on aocount of failure to deliver in time stated and alleging that defendants were not residents of Hew Orleans, but resided in the City of Hew York and having, no property within the jurisdiction of this Court beyond that shipment of oil in question, prayed for a writ of attachment and sequestration, seized under said writs, the property in question and also prayed for a judgment for 1540.00 with interest. The writs issued, the property in question was seized and subsequently by an agreement between the parties was sold for account of whom it may oonoern, the funds deposited in the hands of the Sheriff, where they are at this time, the defendants filing a prayer for oyer which was oomplied with and subsequently filed an exception of no cause of action, which was by the Cáiurt after hearing, referred to the merits. Then answering, defendants denied the allegations generally and averred that defendants ore a legal copartnership, domioiled in Hew York City and that plaintiffs were justly and truly indebted unto them in the sum of §760.00, balance, due- for merchandise involved in this esse, admitting they had received the one hundred dollars through telegraphic advices. They admit the telegraphic request nf plaintiff to sell two hundred gallons of olive oil to them at §4.30 per gallon; they admit they accepted said offer on date set forth January 23nd, 1919. They allege thst they shipped said two hundred gallons of oil on January 37th and to do so were oompelled to pack the oil in cans and cases in order to put same in deliverable condition; they admit that in accordance with She terms of the oontr^ct -*nd written instructions received from plaintiff they sent b. sight dr'-ft attached to the hill of lading for the price [336] of said oil to the Canal Bank & Trust Company of the City of Hew Orleans and that in due course that draft with hill of lading attached was presented to plaintiffs who refused without cause to pay said draft and therefore wrongfully causing the writs of attachment and sequestration to he issued and subsequently sold hy consent of oew-sel of hoth parties, without pro-judiot, for account of whom it may oonoernj and alleging finally that defendant had faithfully performed all its obligations under said contract and is entitled to judgment for $760.00,. balance due. We have carefully examined the record in this case, to-gjthsr with all the documents, telegrams, connected with same and we find that plaintiffs did, on Janaury 21st, 1919., wire defendants, asking for their lowest prioe and terms, two hundred g.-lions olive oil, five gallon cans; and on that same day defendants quoted the prioe at $4.30 per gallon f. o. b. Few York, together with a payment of one hundred dollars in advance, balance sight draft against bill of lading. To this acceptance, also by wire, plaintiffs ordered defendants to ship immediately via Morgan Line, two hundred gallons olive oil and remitted through telegram, one hundred dollars requedted by defendants, pnd in reply to this telegram defendants acknowledged by wire, the reoeipt of one hundred dollars end agreed to ship the oil via Morgan Line. We find that instead of complying -with plaintiff's request and shipping via Morgen Line, that defendants contended th”t on account of e. strike On that line thit they had shipped via the Pensylv&nia Railroad .and this caused the delay for several weeks in the delivery of the oil, and in the meantime the oil h”d declined sufficiently to cause s, cancellation of the seles made in contemplation of delivery, which could have been made if defendants had carried out the orders reoeived for shipment and shipped in accordance with contract. [337] The ¿vider.es of th» s-iss cf ths oil in question,and therefor ot-noellr Sion cf the orders/ ' is supported by the testimony of D'r.tcni, Joseph Greco and Joseph S. .!■■. , who were the uur-ch- sers of the oil ^if delivery wr.a made to then -within the ten d'.ys under their respective oontr-'-ots. The Record presents else the evidence of the Agent cf the Morgen Steamship Lines, giving the d- tes of the 3' iling of the vessels at the time in question, shoving th---t if the shipment had be^n promptly made in acioritnes with orders received, they would h*ve arrived hers in smple time to hove mede the deliveries to the purohassrs end to hove yielded the profit cl-imsd by pleintiff in this cese; and we find further the testimony of this agent proves thet there was no strike of the Morgan Line at the time in question. In the case Bright vs. The Produce Company, recently decided by this Court, Ho. 8.095. we held: "Where a vendor fails to deliver the thing he has sold he owes to the purchasers as damages, the difference between the contract price and the market price of the thing on the day delivery should have been made." And there cited numerous authorities in support of that dootrins. In the 138th La. p. 138, Robinson vs. Barton, it was held: "Thera was unquestioned delay in the delivery of seme of the lumber and damages may be recovered from the vendors by the vendee for delay in delivery of the thing sold, according to she circumstances in the case." As to that -portion of plaintiff's claim for damages depending on what we consider to be spec-air.tive, this portion of the claim must be denied. C. C. 1934; 137 La. 348; 35 Ann. 533; 47th Ann 648; 11th Ann. 300. .that by We find in the record/agreement between counsel th-it the merchandise in question was sold at public auction [338] by the Civil Sheriff vho hs-.s in his possession for account of whom it u.c-y oonosrn, the sum of §463.13. Ths evidence convínoos us th:-t ths Siles male by Canton!, which were subsequently o-uoellecl, «culi heve yielded e. net profit tc him in the sum of §240.00 end in addition thereto the one hundred dollars p"id by plaintiff tc defendí nt prior to the shipment of ths oil, in accor lance with contract, waking the sum of §340.00, v.'hich plaintiffo sfccfat from this record in our.opinion t.re entitled, to recover. The ..refits claimed by pi intiff other /ise arc so soul' tivo and therefore under ths í-uthorities quoted gl-.iniiff o nnot reoovsr. Fair the r-^sons as.oigned it is ordered, adjudged and ¿screed that there be judgment in £•. Vor of pi: intiff 3, V. S. D.ntoni & Cocpr ny <.iid c,j--inst ths defendant, Francisco Bertclli t. Company,, in the full sum of §340.00, with lisn <nd privilege on the property sequestered c-nd attached in this o. se, costs of c.ppa. 1 to bo p-id by pi..intiffs, costs of lover Court to be p id by the defendants. -Judgment amended and affirmed-