In Error to the District Court of the United States for the Southern Division of the Southern District of California; Benj. E. Bledsoe, Judge.

Action by T. W. Jenkins & Co., a corporation, against the Anaheim Sugar Company, a corporation. Defendant’s demurrer having been sustained, and. the action dismissed (237 Fed. 278), plaintiff brings error.

This was an action upon a contract by Jenkins & Co., plaintiff below, an Oregon corporation, wholesale grocers, and engaged in buying and selling and dealing in sugar, against the Anaheim Sugar Company, a California corporation, engaged in manufacturing and refining sugar. The contract is as follows:

“San Francisco, Calif., June 13, 1914.

“A contract is hereby entered into between Anaheim Sugar Company, party of the first part, and T. W. Jenkins & Co., party of second part, to wit: Party of first part sells and party of second part buys August requirements bags fine granulated beet sugar at :j>4.20 per bag less 2% cash 8 days, f. o. b. Sail Francisco, August shipment. It being understood and agreed that party of the first part guarantees the price up to time of refusal against decline only to the liase of C. & II. and Western Sugar Refining Co.”

Plaintiff alleges that the contract price was less than the prevailing market price in San Francisco when the contract was entered into, and that the price was fixed by1 defendant in consideration of the plaintiff’s agreement with defendant that it would buy “exclusively from defendant all * * “

granulated beet sugar required in its business during the month of August, 1914.” It is alleged that the plaintiff relied upon the agreement, and made no other arrangements for its August requirements; that thereafter, in August, plaintiff required in its business and ordered 4,800 bags of sugar, and there was shipped and delivered from time to time during August by defendant to plaintiff 600 bags of sugar and no more; that it had many thousand customers to whom it sold sugar and merchandise and that much of its business was wholesaling to customers sugar in hag lots; that the method of dealing in sugar was this: Plaintiff would contract with a sugar producer or refiner for the sale to it, covering a specified period, of such sugar as it would require for its sale to its customers, and plaintiff would thereupon receive from and solicit from its customers orders for sugar in bag lots at a stipulated price, based on the contract price between plaintiff and the producer or refiner, delivery to be made to its customers at a future time agreed upon between the plaintiff and its customers at the time of sale, all of which was well known to the defendant when the contract herein involved was made, it is alleged that defendant in its business usually and ordinarily required in August of each year sugar in excess of 4,800 bags, and that, relying upon the contract, plaintiff solicited and received from many of its customers orders for 4,800 bags of sugar, which it intended to deliver to said customers from the sugar to be delivered under the terms of the contract; that when the contract was entered into defendant knew the nature of plaintiff’s business and the manner in which it was conducted, and what plaintiff’s requirements for sugar would be during the term of the contract entered into with plaintiff; that because of the refusal of defendant to deliver 4,200 hags of sugar plaintiff lost its profits on the resale thereof, and had to buy in the open market sugar in excess of the price stipulated for with defendant a.nd was damaged in the sum of $13,020,

By demurrer these questions were presented: Does the complaint state facts sufficient to constitute a cause of action, and (2) is the complaint uncertain, ambiguous, or unintelligible? The District Court sustained the demurrer, plaintiff declined to amend, and judgment was entered, dismissing the action, whereupon plaintiff sued out writ of error.