#### WESTERN TIMBER TREATING COMPANY v. THE UNITED STATES.

[No. 33865.

Decided May 31, 1921.]

*On the Proofs.*

*Contract; abandonment.*— Where a contractor voluntarily abandons work because it found its contract unprofitable, it can not recover prospective profits.

*The Reporter's*statement of the case:

*Messrs. Ghartes A. Keigwin*and *William R. Andrews*for the plaintiff. *Mr. James H. Spalding*was on the briefs.

*Mr. Fred K.*Dyar, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff, the Western Timber Treating Co., is a corporation organized and existing under and by virtue of the laws of the State of California for the purpose of engaging in the logging, lumber, and timber business, and of buying standing timber and cutting and selling the same. On the 29th day of November, 1912, the said plaintiff entered into a written contract with the United States, whereby the United States sold to the plaintiff 500,000 merchantable lodgepole-pine poles on an area consisting of 300 square miles, the contract providing that said timber is estimated to be approximately 500,000 merchantable dead, insect-infected, and green lodgepole-pine poles. A copy of said contract is filed with the petition and is made a part hereof by reference.

II. In accordance with the terms of said contract the plaintiff deposited with the proper officer of the United States *335the sum' of $3,500, and duly executed to the United States a good and sufficient bond in the penalty of $5,000.

On March 31, 1916, upon the request of the plaintiff, section 6 of the contract was modified so as to give to the plaintiff an extension of time by which he was not required to cut 100,000 poles before April 1, 1917, and 250,000 poles before April 1, 1919.

III. The plaintiff began operations in the Lassen Forest in the season of 1913, and between that time and the fall of 1915 cut 18,119 poles of the kind and character included in the contract. In the fall of 1915 the plaintiff ceased, operations, abandoned its contract, and never thereafter attempted to resume operations.

IV. Sometime in 1915 a joint cruise of the timber on a comparatively small part of the area was arranged and conducted by one Gallaher, an employee of the Forest Service of the United States, who made a report in February, 1916, from which report it appeared that there were on the area cruised about 16,000 merchantable lodgepole-pine poles. This cruise was made to determine the number of poles within 5 miles of a projected railroad, and covered only a fraction of the area set out in the contract — the Gallaher cruise only embracing 5,367 acres.

V. Before the United States advertised the timber on the area embraced in the contract a cruise of said area was made by an employee of the Forest Service of the United States. The report of said employee showed that there were 1,000,000 merchantable lodgepole-pine poles on the area set out in the contract. No cruise of the area embraced in the contract was made after the cruise above referred to.

VI. Following the abandonment of the contract by the plaintiff in the fall of 1915, the Government terminated the contract formally on June 9,1917, and returned to the plaintiff a small balance of the fund of $3,500 deposited with the defendant.

VII. The plaintiff was not compelled to cease operations under its contract because of the lack of ledgepole-pine poles on the sale area, but ceased operations because it found its contract unprofitable.

*336MEMORANDUM BT THE COURT.

This is a suit brought by the plaintiff for the recovery of the sum of $200,000, which the plaintiff alleges would have been its profits if the United States had not failed to supply the plaintiff with the number of poles set out in the contract between the parties.

In the first place there is no evidence as to what the profits would have been had the plaintiff marketed the 500,-000 poles sold to it by the defendant.

In the second place the plaintiff abandoned its contract after having applied for and obtained an extension of time and without ascertaining how many poles were on the sale area.

In the third place the evidence tends to show that there were 500,000 poles on the sales area.

The petition must be dismissed, and it is so ordered.