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: 39
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J. N. PHARR & SONS V. C. D. KENNY CO. 39
(272 F )
in December, of 1919 In September it had contracted to sell 2.200
barrels of sugar to parties other than the plaintiff. November 8, 1919.
the Food Administration fixed a maximum price of 18 cents per pound
for sugar for the season of 1919. November 14, 1919, defendant no-
tified the plaintiff that it desired to be relieved of its obligation to fur-
nish sugar, and also stated that, on account of the greenness of the
cane and e\ceCsive moisture, defendant had been unable to start its
factory, and asserted that it was excused from doing so by reason of
the action of the Food Administration, and during the same day offered
to sell to defendant at the price fixed by the government 10,000 barrels
of sugar, to be delivered as purchased during the months of No em-
bl-r and December, upon condition that the contracts be canceled.
Plaintiff declined to accept these offers of defendant
There was evidence that the Food Administration allowed whole-
salers to make a profit of one cent per pound, and retaile s to make a
profit of two cents per pound, on sugar during these months of No-
vember and December. There was also evidence that the plaintiff had
84 stores at which it sold sugar, and that it was abiding by the scale of
profits approved by the Food Administration, and that plaintiff was
able to procure only about half of the quantity of sugar it needed to
supply its customers. Defendant's secretary and treasurer gave as one
of the reasons for failure to deliver the sugar that he thought the pro-
ducer, and not the middleman, whether wholesaler or retailer, should
have the benefit of the advance in price, especially in view of the hmi-
tation by the Food Admministration of profit to the middlemen of one
and two cents per pound, and further testified that he was willing for
plaintiff to have the entire output of the sugar manufactured by de-
fendant, if by doing that plaintiff would surrender its contracts and
The court charged the jury that, if defendant was prevented from
manufacturing sugar by weather conditions, or the unripe condition of
the cane, or the shortness of the sugar crop, it would be excused from
making delivery: that it was the duty of the plaintiff to minimize the
damages as much as possible by buying other sugar to take the place of
that contracted for; and also that the government, through the Food
Administration, had fixed the margin of profit for dealers as already
stated, and instructed them to consider this fact in arriving at the meas-
ure of damages. It was shown by the evidence that a barrel of sugar
contains 350 pounds or more, from which it is apparent that, if plain-
tiff had recovered the difference between the contract price and that
fixed by the Food Administration, the damages would have been at
least $27,552. Plaintiff recovered a verdict of $18,200.
[1 ] The exception of no right or cause of action was based upon the
supposed failure of the petition to allege a putting in default. The al-
legations are that defendant "breached the said contract, and refused,
notwithstanding repeated demands on the part of petitioner, to fulfill
its part of said contract, by shipping said sugar," and that plaintiff "did
timely and seasonably make demands during the month of November,
1919, and again during the month of December, 1919, upon the said de-
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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., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/61/: accessed July 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.