Chattanooga Car & Foundry Co. v. Lefebvre

Citations

• 113 La. 487
• 37 So. 38
• 1904 La. LEXIS 666

Syllabus

<p>CONTRACT — CONSTRUCTION — PERFORMAN OE — DEFAULT — DAMAGES—DEFENSES — CONFLICTING EVIDENCE — ESTOPPEL — BURDEN OF PROOF.</p> <p>1. Under the contract sued on the plaintiff agreed to ship to the defendant a certain number of cane cars “as early as possible in September,” and it is shown that the plaintiff was informed that the cars were to be used in taking off the cane crop of that year. Held: A fair reading of the contract leads to the conclusion that the question, “How early in September was it possible for the plaintiff to ship the cars?” was for him to determine, and hence that he had until the expiration of the last day of that month within which to make the shipment; that the defendant was, therefore, in no position to put him in default prior to that time, and was under no obligation to do so afterwards, since the delay within which the shipment should have been made must then have expired, and the plaintiff could by no possibility thereafter have complied with his contract. Held, moreover, that the inability of the plaintiff, whether acknowledged then or afterwards, to make the shipment within the time specified, it being shown that such time was of the essence of the contract, rendered the putting in default unnecessary. Held, further, that the fact that the defendant accepted the cars and paid the freight on them does not preclude his recovery of the damages shown to have been sustained by reason of the failure of the plaintiff to ship them within the time agreed on, since he was then threatened with a loss, which it was at once his duty, his interest, and his right to minimize as far as possible, and his efforts in that direction ought not to be allowed to operate to his prejudide.</p> <p>2. It is a matter of public and historical knowledge that sugar cane is an exotic in this state, and that a freeze at some time between the beginning and the end of the short grinding season is a danger by which each successive crop is threatened; and where, in order