187 F2d 487 Duplex Mill Manufacturing Company v. B J Gross

187 F.2d 487

DUPLEX MILL & MANUFACTURING COMPANY, Springfield, Ohio, Appellant,
B. J. GROSS, dba Gross Feed Store, Bonham, Texas, Appellee.

No. 11219.

United States Court of Appeals Sixth Circuit.

February 9, 1951.

Appeal from the United States District Court for the Southern District of Ohio at Dayton; Robert R. Nevin, Judge.

John M. Cole, Fred M. Cole, and George W. Cole, all of Springfield, Ohio, for appellant.

Buster Cole, Bonham, Tex., Corry, Durfey, Martin & Browne, and Bitner Browne, all of Springfield, Ohio, for appellee.

Before SIMONS, MARTIN and MILLER, Circuit Judges.


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This appeal was heard on the record, briefs and argument of counsel for respective parties;


And it appearing that there was substantial evidence on behalf of the appellee of the cost of 19,798 bushels of ear corn, purchased and then resold by him without shelling by reason of appellant's breach of contract, namely $1.95 per bushel, and the cost to appellee of 15 cents per bushel to shell corn so purchased, and a firm unlimited market sales price of $2.40 per bushel for corn so shelled by him, resulting in a loss of profits in the amount of $5,939.40 resulting from the failure of appellant to deliver the corn sheller purchased by appellee; and also substantial evidence on his behalf of his ability to have purchased, shelled and marketed on the same basis additional corn to utilize the full capacity of the sheller; and also substantial evidence of loss or damage to the good will of appellee's business;


And such lost profits appearing to have been within the contemplation of the parties when the contract was made as the probable result of its breach, and having been shown with a reasonable degree of certainty from the evidence; The Cincinnati Siemens Lungren Gas Illuminating Co. v. The Western Siemens-Lungren Co., 152 U.S. 200, 14 S.Ct. 523, 38 L.Ed. 411; Jaynes v. Vetel, Ohio App., 80 N.E.2d 621; Queen Incubator Co. v. Merrell Co., 21 Ohio App. 482, 153 N.E. 272;


And it further appearing that there was no error in the charge of the Court to the jury on said issues;


It is ordered that the judgment of the District Court be affirmed.