Ozmo Oil Refining Co. v. Cotton & Co.

GILBERT, Circuit Judge (after stating the facts as above). The defendant took no exception to any of the findings of fact and made no request for findings in its favor. Under the well-settled principles of practice in the federal courts, the only question open to discussion in this court is whether the findings of fact sustain the conclusion of law. [ 1 ] It is contended that the notice of resale given by the plaintiff to the defendant was insufficient to form the basis of a demand for damages arising out of loss of profits, in that the notice made no mention of the market in which the wax had been resold, and no information that the resales had been made at a profit, and the defendant contends that, in the absence of such notice to the defendant, the plaintiff must content itself with damages to he estimated on the basis of the general market or the actual value of the goods. The contention is against the decided weight of authority. 24 R. C. L. 81; Guetzkow Bros. v. A. H. Andrews & Co., 92 Wis. 214 , 66 N. W. 119 , 52 L. R. A. 209, 53 Am. St. Rep. 909 ; Howard Supply Co. v. Wells et al., 176 Fed. 512 , 100 C. C. A. 70 ; Armeny v. Madson & Buck Co., 111 Ill. App. 621 . [2] It is contended that it was the duly of the plaintiff to purchase wax in the open market, and thus minimize its damages; the market price during the period covered by the contract having been no greater than the contract price. But to this it is to be said that the undisputed evidence is that the defendant repeatedly and continuously promised delivery until as late as April, 1919. At that time the plaintiff ascertained that it would be impossible for the defendant to furnish the wax in time to be of any benefit to the plaintiff; the Standard Oil Company and Mitsui & Co. having canceled their respective contracts. The *724 testimony was that the plaintiff made inquiry, but did not make purchases, “in view of the fact of the defendant insisting it was going to compel us to take delivery of the wax which it claimed all the time' that it could furnish.” Under the circumstances the plaintiff was not bound to purchase in the market. Benton v. Fay & Co., 64 Ill. 417 ; Kentucky Distilleries & W. Co. v. Lillard et al., 160 Fed. 34 , 87 C. C. A. 190 ; Howard Supply Co. v. Wells, 176 Fed. 512 , 100 C. C. A. 70 ; Campfield v. Sauer, 189 Fed. 576 , 111 C. C. A. 14 , 38 L. R. A. (N. S.) 837. [3] The burden of proving that the damages sustained by the plaintiff could have been prevented or mitigated rested upon the defendant. Mathesius v. Brooklyn Heights R. Co. (C. C.) 96 Fed. 792, 795 . The judgment is affirmed.