The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 37

J. N. PHARR & SONS V. 0. D. KENNY CO. 3'
(272 F.)
This testimony is conflicting, and we think it presented a question of
fact that should have been submitted to the jury.
Judgment reversed, with direction to grant a new trial.
J. N. PHARR & SONS, Limited, v. C. D. KENNY CO.
(Circuit Court of Appeals, Fifth Circuit. March 19, 1921.)
No. 3630.
1. Sales 4=,411-Petition held to allege sufficiently a putting of the seller in
default.
In a buyer's action for the seller's breach of a contract for the sale of
sugar to be delivered in November, 1919, a petition alleging that the
seller breached the contract, and refused, notwithstanding repeated de-
mands, to tulfill the contract by shipping the sugar, and that the buyer
timely and seasonably made demand during November, 1919, and again
during December, on the seller, for the fulfillment of its part of the con-
tract, but without avail, sufficiently alleged a putting in default.
2. Sales <=182(1)-Whethe r weather conditions and greenness of sugar cane
were causes of seller's refusal to deliver sugar held for the jury.
Though weather conditions delayed the manufacture of sugar by a
seller, yet, where it manufactured enough sugar to fill all of its contracts,
it was a question for the jury whether the greenness of the cane and the
weather conditions were the cause of its refusal to deliver sugar under a
contract of sale contingent on causes beyond the seller's control, in view
of an advance in price
3. Sales C68-Contraet of sale contingent on causes beyond seller's con-
trol held to Include sugar manufactured from purchased cane.
Under contracts for the sale of sugar by a grower of sugar cane and
manufacturer of sugar, contingent on causes beyond its control, though
it may not have been compelled to buy cane from other parties in order to
fill the contract, m here it did so, and it was its uniform custom to do so,
the contracts included sugar manufactured from cane so purchased.
4. Evidence =461(3)-Intention of seller of sugar by written contract to
contract only for sugar manufactured from its own cane not proven.
Under a written contact for the sale of sugar by a grower of sugar
cane and manufacturer of sugar, contingent on causes beyond its control,
evidence would not have been admissible of anything said, when the con-
tract was negotiated, as to the inufacturer's intention to contract only
for the future delivery of sugar manufactured from cane grown on its
own plantations
5. Sales e=411-Petition in buyer's action held not to limit buyer's rights to
sugar manufactured in particular parish.
Where contracts- tor the sale of sugar by a manufacturer did not refer
to the place oat manufacture, but were contingent on causes beyond the
manufacturer's control, an allegation in the petition in the buyer's ac-
tion for the manuilaclurer'c bleach that the manufacturer's place of
business and domile were in a particular parish was not equivalent to
an allegation that the contLacts applied only to sugar manufactured in
that parish, where the contracts were pleaded and made a part of the
petition by reference.
6. Sales C=420-Measure of damages for breach of contract of sale properly
left to jury, notwithstanding profit fixed by Food Administration.
In an action against a seller for breach of a contract for the sale of
sugar purchased for resale, though the United States Food Administration
had fixed a margin of profit on resales, and the buyer was abiding by
4:For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes