Bolin Farms v. American Cotton Shippers Association

As of January 3, 1974, the writer assumed jurisdiction. These cases had *1356 previously been handled by the Honorable Ben C. Dawkins, Jr. A five-page order was entered on January 3, 1974; following a lengthy conference with counsel.

The pending motions have been submitted on the transcript of hearings held before Judge Dawkins, a multitude of depositions, and various affidavits.

CIVIL ACTION 19502

The motion to dismiss, pegged on lack of diversity, has been sustained and a judgment signed. My understanding is that both sides concede dismissal to be correct.

CIVIL ACTION 19485

Defendants in this $665,000,000 anti-trust suit filed a motion to stay, insisting that judgment in the contract cases favorable to plaintiffs is an essential prerequisite to a day in court in the anti-trust suit. We intimate no opinion as to the validity of this contention. We do grant a stay of all further proceedings for the time being, with the exception of the pending motion by plaintiffs for a preliminary injunction. Judge Dawkins granted a temporary restraining order, but, by order of November 1, 1973, dissolved the TRO and cancelled the hearing on the preliminary injunction that had been scheduled for November 19, 1973. Writs of mandamus and prohibition were lodged in the Fifth Circuit Court of Appeals. That Court, on November 19, 1973, denied the writ. Plaintiffs would enjoin the defendant “cotton buyers” from:

1. Requiring any farmer to sign the so-called Confirmation of Sale statement which would reveal whether or not his cotton had been previously contracted for.

2. Using any of the catalogs prepared by American Cotton Shippers Association in determining whether to purchase cotton or not.

3. Using any kind of criterion in the purchase of cotton, except technical data that was not employed prior to 1973, and

4. Refusing to purchase cotton from farmers who signed 1973 cotton contracts on any different basis or price than that made or paid to cotton farmers or producers who did not sign contracts for 1973.

The circumstances in which a preliminary injunction may be granted are not prescribed by the federal rules. The grant or denial often remains a matter for the trial court’s discretion and must be exercised in conformity with historic equity practice. We cannot say, as a matter of equity, that a cotton buyer cannot require a statement from a prospective seller that he has not previously contracted for the sale of his cotton. We are not prepared to prohibit cotton buyers from utilizing trade catalogs to ascertain whether or not a prospective seller has sold to someone else. Plaintiffs’ motion for a preliminary injunction is denied.

This anti-trust action is severed for separate consideration. This severance is necessary to avoid possible prejudice and to expedite resolution of the contract cases.

THE CONTRACT CASES — 19,351, 19,389, 19,365, 19,364, 19,418

This litigation arises out of the attempts by eleven (11) cotton farmers to test the contracts by which they conced-edly obligated themselves to sell and deliver their cotton. In essence, defendants agreed to purchase whatever was planted by these farmers on specific acreage at a price agreed upon between January and March of 1973, irrespective of what the price might be at harvest time. Meanwhile, the price of cotton unexpectedly skyrocketed to at least double the price agreed upon. The complaints seek a declaration that the contracts are null and void, so that plaintiffs may achieve a better price than they bargained for. The fundamental question in each action involves the enforceability vel non of contracts for the *1357 advance or forward sale of cotton grown for the 1973 crop.

CLASS ACTION REQUEST

Plaintiffs seek to maintain these contracts as consolidated class litigation on behalf of “all cotton farmers in the State of Louisiana that have signed ‘forward’ or ‘future’ crop contracts with cotton brokers and/or buyers.” (Plaintiffs’ motion, page 1.) This description would, of course, encompass a highly diverse aggregation of purported class members, many of whom may be persons who never had dealings with defendants. The individual petitions make no reference to any purported class, and all allegations are asserted on behalf of individual plaintiffs. As the Court of Appeals for the Fifth Circuit made clear in Danner v. Phillips Petroleum Co., 447 F.2d 159, 164 (5th Cir. 1971), complaints such as these cannot possibly provide an adequate predicate for class action certification.

Even more significant, plaintiffs have not made the slightest factual showing that the weakening of the forward contracting system which this purported class litigation seeks would be welcomed by, or would in any way benefit, all members of the purported class. On the contrary, it is apparent that plaintiffs’ interests are antagonistic to, rather than typical of, many members of the purported class. Surely, a person who has attempted to test his contract and has incurred counterclaims thereby can in no sense be regarded as “typical” or adequately representative of a class of persons who have not attempted to repudiate their contracts. This inescapable divergence between plaintiffs’ position and class members’ positions is even more pronounced in the case of those class members who have already delivered and been paid.

In Arnesen v. Raymond Lee Organization, Inc., 59 F.R.D. 145, 148 (C.D.Cal. 1973), as in the case at bar, a plaintiff who was “seeking a rescission of his agreement” with defendants sought to represent a class composed of other persons who had entered into agreements with defendants but had not purported to rescind their agreements. The Court held that because of plaintiff’s attempted rescission, plaintiff was in a “different posture” from that of other class members, and thus:

“Plaintiff’s claim against defendants is not typical of claims of other members of the class, Rule 23(a)(3) * * 59 F.R.D. at 148.

We conclude that the maintenance of plaintiffs' class pursuant to Rule 23 would be improper, and the motion for a determination of the same is denied.

THE MOTIONS

The record is a morass of pleadings which can best be unraveled by proceeding to the very core of the case — that is, the validity and enforceability of a contract for the purchase and sale of cotton, entered into between a willing buyer and a willing seller, both adult (experienced cotton farmers on the one hand and experienced cotton buyers on the other hand) on an open and competitive market. The ease on summary judgment presents two facets: 1

(1) The prayer of plaintiffs for a declaratory judgment annulling the cotton sales contracts, and

(2) The prayer of defendants that the contracts be adjudged lawful and valid.

On these motions, we have before us:

1. The depositions of 25 individuals;

2. Affidavits filed by defendants prior to January 3, 1974, and the affidavit filed by Mr. Kidd as per this Court’s instructions, and

3. The transcript of the proceedings before the Honorable Ben C. Dawkins, Jr. on November 26 and 27, 1973, and December 5, 1973. This transcript includes the testi *1358 mony, under cross examination, of some 20 individuals.

An opening article of the Law of Obligations (Louisiana Civil Code Article 1901) reads:

“Agreements legally entered into have the effect of laws on those who have formed them.

“They cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.

“They must be performed with good faith.”

This statutory mandate has stood unaltered from Article 1134 of the Code Napoleon through the Louisiana Codes of 1808, 1825 and 1870.

It is a matter of public record and public knowledge that as a result of the sudden and spectacular rise in the price of cotton in the latter part of 1973, literally scores of suits have been filed, either to enforce or rescind these advance or forward contracts. Defendants have cited thirteen (13) cases that arose between September 18 and November 9, 1973. In each, the validity of the contracts has been upheld by either summary judgment, declaratory judgment, preliminary injunction, and/or permanent injunction. These affirmations of the contracts have emanated from the United States District Courts for the Middle District of Georgia, the Northern District of Mississippi, the Western District of Tennessee, the Northern District of Alabama, The District of South Carolina, the Northern District of Georgia, and from the state courts of Arkansas, Georgia, Alabama and Mississippi. 8

Jurisdiction is pegged on diversity. We are governed by Louisiana law. 2 3

The contracts are in evidence. They speak for themselves. No useful purpose would be served by detailing each provision. They were entered into between January 9, 1973 and March 29, 1973. In each, plaintiffs obligated themselves to sell and deliver to the defendant cotton buyers all of the cotton raised and harvested on designated acreage. The price ranged from 29^ to 410 per pound. The actual cotton produced was physically to be delivered to the buyers, to be by them physically received and paid for on delivery. These contracts were negotiated prior to planting. We call them “forward” sales contracts. Each plaintiff cotton farmer was experienced, having been a cotton producer for several years, and each was familiar with the forward sale contract procedure.

The depositions reveal that during the period of time from January 9 th through March 29, 1973, the competitive open market range ran from 280 to 320 per pound. On the basis of the record it would be difficult to quarrel with the proposition that the sales were for a fair market price at the time they were made, and as a matter of law we con- *1359 elude that the price and circumstances prevailing at the time are determinative.

From April through September, the cotton market rose spectacularly. The price of 290 or 300 a pound, which looked so good to the farmers in February, no longer looked so good against 800 in September.

These farmers certainly have every right to contest the validity of their contracts. Likewise, the buyer has every right to assert the validity of their bargain. To quote the Honorable Wilbur D. Owens, Jr., U. S. District Judge, Middle District of Georgia (see Mitchell-Huntley Cotton Co. v. Fulton Benson, Civil Action 2902):

“Ladies and Gentlemen, this ease illustrates about as well as any case that will ever be in a court room that life is a two way street, that when we make bargains that turn out to be good for us that we keep them and then when we make bargains that turn out to be bad for us that we also keep them. That seems to be the essence of what this case is about.

“The defendants, naturally, don’t want to sell cotton because the price has gone up and if I were one of those defendants I would feel the same way. I would be sick as an old hound dog who ate a rotten skunk, but unfortunately — well, not unfortunately — fortunately we all abide by contracts and that (is) the foundation of which all of the business that you have heard about here today is done.”

What caused the upward price spiral of April to September ? There were many causes. We are unable to pin down any one. Be that as it may, the cause has no relevance to the validity of the contracts. Some of the deponents point to such factors as large export shipments to China, high water and flood conditions in the cotton belt; late plantings forced by heavy rains, and the devaluation of the dollar. These elements and others are reasonable causes, but whatever causes the market to go up and down after the date of a contract has no relevancy to its validity. One facet of plaintiffs’ attack is that the cotton buyers had inside information at the time they contracted with plaintiffs, and that these factors would coincide and drive the price of cotton to the level that it had never before reached. The record does not reveal this to be true. The record will reveal that Dallas Thomason sold his cotton at 300; Frank Jones, Jr., Executive Vice-President of Cook Industries, Inc., sold his cotton at 300; Conner Morscheimer, cotton buyer for W. K. Kennedy Co., Inc., sold his cotton at 29i/20.

Plaintiffs emphasize that the cotton farmer has always been at the mercy of the weather and the boll weevil. This may be true, but by firm forward selling, the farmer shifts many of his risks to the buyer. Thé farmer guarantees neither quality nor quantity. He obligates himself to sell and the buyer obligates himself to buy all the cotton the farmer harvests from identifiable acreage. He sells it at a price at which he figures at the time of the contract he can make a profit in relation to his ex-pectable costs. Against that firm contract he can arrange his crop financing. The depositions reveal the system used, and there can be no argument that it does give the grower a very real limitation of risk.

Plaintiffs allege that the contracts are unenforcible in the absence of federal excise stamps. This is not so. The Federal Cotton Futures Act, 26 U. S.C.A. §§ 4851-4877, imposes an excise stamp tax on each futures contract, but that Act and the tax imposed are not applicable to sales and purchases of cotton, the physical commodity.

Moving quickly to validity, we appreciate that the 13 cases cited are not controlling, but we do find it extremely persuasive that in 13 recent cases attacking the validity, in federal and state courts, all upheld the contracts. Affirming the legality of commodity contracts for future delivery or forward sale contracts where the contracts intend actual delivery of the physical commodi *1360 ty are Baucom and Kimball v. Garrett Mercantile Co., 188 La. 728, 178 So. 256 (1937) (cotton), and Penick & Ford v. C. Lagarde Co., 146 La. 511, 83 So. 787 (1920) (molasses). It has been consistently held in Louisiana that contracts of this nature are not in any respect contra bonos mores as gambling transactions, but are perfectly valid. Manget Brothers Co. v. Page, 183 So. 139 (La. 2 Cir. 1938 — Writ denied) (cotton); Gerde Newman & Co. v. Curcuru, 18 La.App. 572, 139 So. 83 (Orleans App.1932) (eggs); Burke v. Biggers (App.Orleans, 1920), 3 Peltier Reports 525 (cotton) ; Bibb v. Allen, 149 U.S. 481, 13 S. Ct. 950, 37 L.Ed. 819; Bowles v. American Rice Growers’ Co-operative Assn., 66 F.Supp. 489 (W.D.La.1945); Plaquemines Equipment & Machinery Co. v. Ford Motor Co., 245 La. 201, 157 So.2d 884 (1963).

The Louisiana jurisprudence uniformly sustaining validity is firmly founded upon Articles 2450 and 2451 of the Louisiana Civil Code:

“A sale is sometimes made of a thing to come; as of what shall accrue from an estate, of animals yet unborn, or such like other things, although not yet existing.” (2450)

“It also happens sometimes that an uncertain hope is sold; as the fisher sells a haul of his net before he throws it; and, although he should catch nothing, the sale still exists, because it was the hope that was sold, together with the right to have what might be caught.” (2451)

Plaintiffs’ request in each of these five (5) cases for declaratory judgment annulling the cotton sale is denied; defendants’ request that the contracts be adjudged lawful and valid is granted. In arriving at these conclusions, we find:

1. The contracts are not contra bonos mores ;

2. The contracts do not permit the unjust enrichment of the defendants;

3. The contracts are not vague; they are capable of a reasonable interpretation ;

4. The contracts do demonstrate there was a meeting of the minds between the parties;

5. There was proper consideration for making of the contracts;

6. The item contracted for was not uncertain as a matter of law.

7. There was no lesion beyond moiety, and lesion beyond moiety is not applicable.

8. Defendants did not illegally solicit the contracts;

9. The contracts are not in violation of the Internal Revenue Code, 26 U.S.C. §§ 4851-4877.

SPECIFIC PERFORMANCE

We describe a promisor’s failure to perform his promise as a breach of contract; we do not describe his duty as being in the alternative — -that is, to perform or pay damages. The Louisiana Civil Code indicates very strongly that the remedy of specific performance was fully intended by the redactors of the Code:

1. One of the opening articles in the Law of Obligations defines a civil obligation as “a legal tie, which gives the party, with whom it is contracted, the right of enforcing its performance by law.” Article 1757(3).

2. Article 1763 mentions both damages and specific performance as available remedies upon the breach of a conventional obligation.

3. Article 1799 declares that it is a presumption of Louisiana law “that in every contract each party has agreed to confer on the other the right of judicially enforcing the performance of the agreement, unless the contrary be expressed, or may be implied.”

*1361 4. Thus, when one party proposes and the other assents, “then the obligation is complete, and by virtue of the right each has impliedly given to the other, either of them may call for the aid of the law to enforce it.” Article 1803.

5. In prescribing the effect of obligations, Article 1901 provides that “[Agreements legally entered into have the effect of laws on those who have formed them * * *. They must be performed with good faith.” (Emphasis added).

6. Article 1903 follows by providing that the duty to perform extends not only to the primary obligation, but to everything that is considered incidental to the contract.

7. The Code divides obligations into two classifications, as to their effect: (i) obligations to give, and (ii) obligations to do nor not to do. With regard to specific performance, Article 1907 declares that “[t]he obligation pf giving includes that of delivering the thing * * *Article 1909 further provides that, once the object is specified, the obligation is perfect by mere consent of the parties.

The Articles governing obligations, it is argued, imply that specific performance is only a secondary remedy. Article 1926 reads:

“On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.”

However, on analysis of the source provisions of this Article, the corresponding French text in the Louisiana Civil Code of 1825 (Article 1920) provides, on translation:

“ * * * that one in favor of whom the obligation is contracted has the right either to damages with interest or to specific execution of his contract, at his choice, if that execution is possible.” 4

Article 1927 seems also to weaken the argument for specific performance. But clearly, these articles apply only to obligations to do or not to do. The contracts at bar are more appropriately considered as contracts to give, particularly in light of Article 1905:

“The term to give, in this division of obligations, is applied only to corporeal objects, that may be actually delivered from one to another; and it includes the payment of money as well as the delivery of any other article. A covenant, respecting any corporeal rights comes under the definition of contracts to do or not to do, because some act, besides that of delivery, is necessary for the transfer of such rights.”

The Articles governing obligations to give present no bar to specific performance as a method of enforcement.

Article 2046 in the section on resolu-tory conditions declares that there is a resolutory condition implied in all commutative contracts, in case one of the parties does not comply with his obligation. If this breach occurs, the contract is not dissolved of right, but the law gives the aggrieved party two choices of remedies: (1) he may sue for the contract’s dissolution with damages, or, (2) if the circumstances of the case permit, demand a specific performance.

Title YII of the Louisiana Civil Code deals with sales. These articles, too, indicate the intent of the redactors to provide for specific performance. This remedy found in Article 2458, applies precisely to the contracts at bar, *1362 for it speaks of the sale of “goods, produce or other objects.” This codal provision provides that once the goods are “weighed, counted or measured,” the buyer may “require either delivery of them or damages, if there be any, in case of non-execution of the contract.”

These contracts are not “contracts of sale,” but rather, are “contracts to sell.” Article 2462 provides for their enforcement:

“A promise to sell, when there exists reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so for amounts to a sale, as to give either party the right to enforce specific performance of same.”

The article was amended in 1910 so as to read that when there is reciprocal consent, the promise of sale (or contract to sell) “so for amounts to a sale as to give either party the right to enforce specific performance of same.” This amendment altered the consequences from those contained in the French codal article. Under the French version, the property would be acquired by the buyer giving his consent. The 1910 amendment limited the effect of acceptance in Louisiana to the acquisition of a right to specific performance. 5 While this remedy has been pursued most actively in actions involving immovable property, the codal article by no means precludes applicability to a contract to sell movable property. As one commentator stated:

“There is nothing in the articles, nor in the writing of the French commentators, to indicate that there should be any difference in treatment between promises and contracts to sell movables and those to sell immova-bles.” 6

The reference to “immovables” refers to the requirement that there be a writing, and not to the right of a party to enforce by specific performance. Surely, the remedy is available when movable property is involved. While most cases have dealt with contracts to sell immova-bles, Louisiana courts have granted specific performance as to movables. The Louisiana Court of Appeal (2nd Cir.), in Oliver v. Home Service Ice Co., Inc., 161 So. 766 (1935) considered a contract to purchase and sell ice for a number of years. The seller refused to sell ice in accordance with the contract. The purchaser brought a suit for specific performance of the contract, and the Court granted:

“that a writ of mandatory injunction issue herein ordering, directing, and commanding defendant to abide by the terms of the contract sued on, and specifically ordering and commanding it not to increase the price of ice sold to plaintiffs beyond that fixed in said contract.” 161 So. at 772.

In Mente & Co., Inc. v. Roane Sugars, Inc., 199 La. 686, 6 So.2d 731 (1942), the Louisiana Supreme Court enforced a contract to purchase paper bags. The Court adopted the written reasons of the trial judge, in saying:

“The law presumes that parties understand the import of their contracts and that they intend that which its terms and conditions manifest. It is axiomatic that parties should be held to the terms of the contract which they accept; they may contract as they please, provided the cause of the contract is lawful, not contrary to public policy or not forbidden by law, moral conduct or public order, [citations omitted].” 6 So.2d at 734.

The Court went on to order:

“that defendant shall have and enjoy the right to demand of plaintiff the delivery of the merchandise so contracted for, such delivery to be made within reasonable times and under the *1363 terms and conditions of said contract.” 6 So.2d at 736.

In Fromherz v. Bruno, 206 So.2d 144 (La.App. 4th Cir. 1968), plaintiffs sought recognition of ownership and right to the possession of eight custom-made dining room chairs under a contract with a cabinet maker. Specific performance was not prayed for, but the remedy granted had the same result. The judgment recognized plaintiffs as owners of the chairs and ordered:

“defendants to surrender and deliver same to plaintiffs and receive the balance of the purchase price in the registry of the court * * *

There have been many Louisiana decisions involving immovable property recognizing specific performance as the favorable remedy. In Girault v. Feucht, 117 La. 276, 41 So. 572 (1906), the Louisiana Supreme Court granted specific performance of a contract to sell realty, and stated:

“To our mind, if by virtue of a promise of sale equivalent to a sale a man is practically the owner of a certain piece of real estate, and asks the court to enforce his rights, the court would be making but a poor response by giving him damages. What he wants, and has a clear and incontestible right to, is the property itself. To award him mere damages and reject his demand for the property would not be to give him his right, but would be to deny him his right.”

Gulf Refining Co. of La. v. Hayne, 148 La. 340, 86 So. 891 (1920), involved a suit for specific performance of an oil lease contract. The Louisiana Supreme Court granted specific performance, reasoning that

“ * * * the only reason why the breach of any contract gives rise ordinarily to an action in damages is that ordinarily specific performance cannot be enforced. However, performance being the more complete remedy, there can be no reason why it should not be allowed in cases where it is available and demanded.” 86 So. at 893.

In Sexton v. Waggoner, 66 So.2d 634 (La.App. 2nd Cir. 1953), specific performance of a contract to sell realty was granted. The Court of Appeal followed Hayne, and, in relying on Articles 1926 and 1927 of the Civil Code, stated:

“These articles accord to the obligee upon, breach of the obligation the right to exact damages, or to require the dissolution or specific performance of a contract at his option, with the allowance of damages where such have properly accrued. Where specific performance is the more complete remedy, it should be permitted in cases where it is available and demanded.” (emphasis added) 66 So.2d at 639.

See also Gamburg v. City of Alexandria, 85 So.2d 276, 284-285 (La.App. 2nd Cir. 1956). The effects of a, contract to sell were discussed in Choctaw Home Buildings, Inc. v. Lena, Inc., 223 So.2d 23, 28 (La.App. 1st Cir. 1969). The Court stated:

“A promise to sell, when accepted by the prospective purchaser, is analogous to a sale. In such instances the “buyer” acquires a real right tantamount to a sale which entitles him to maintain an action for specific performance of the contract to sell.”

In the ordinary case the parties bargain for performance and often fail to even address the consequences of nonperformance. This is not the case here. In 19364, 19365 and 19389, the contracts state:

“Seller * * * guarantees the terms of this contract will be carried out.”

In 19351, 19365 and 19418, the Seller agrees to “sell and deliver” the cotton.

This Court, in Pennzoil United Inc. v. City of Monroe (unreported, No. 15801), enforced by injunction against the seller, Pennzoil, specific performance of its contract to sell gas to the City of *1364 Monroe. See also United Carbon Company v. Monroe, 92 F.Supp. 460 (D.C. 1950); 196 F.2d 455 (5th Cir. 1952).

Our conclusion is that plaintiffs’ contention that under Louisiana law the rejection of the contract can result merely in compensatory damages cannot square with the language of the Code, the jurisprudence, or the deal of the parties.

If the primary justification for the contract rule is not a principle, it must be a policy; promises are enforceable in order to facilitate commerce. It is the disruption of that flow of commerce which would be caused by breach of these contracts that fundamentally makes the breach irreparable. (Testimony of Shackelford and Lynn in the hearings of November 26-27, and affidavits filed with the motion for summary judgment).

The contracts have been held valid. Clearly, given the legality, injunction ordering their performance is the only just and equitable remedy.

The relationship between mandatory injunctions and declaratory judgments in federal actions generally was discussed by the Court of Appeals in its May 9, 1973 opinion from the stay order of this Court. PPG Industries, Inc. v. Continental Oil Company, 478 F.2d 674, 680 (5th Cir. 1973), the Court saying, as follows:

In the context of federal actions attacking state criminal proceedings or the collection of federal taxes the Supreme Court has explicitly held that the factors governing the decision to grant or withhold an injunction or declaratory relief are largely the same, see Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Great Lakes Dredge & Dock Company v. Huffman, 1943, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407, and in our view it is logical that similar considerations should underlie the decision to grant either form of remedy in a diversity action involving only. private rights as well. As the Supreme Court observed in Meredith [Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9], a declaration of rights is normally a prerequisite to an award of injunctive relief, whether or not the plaintiff prays for a declaratory judgment. Likewise, a declaratory judgment, though not itself coercive, may serve as the basis for subsequent injunctive relief in an appropriate case. See 28 U.S.C.A. 2202. The close relationship of the two remedies, both of which are discretionary, logically and properly calls for consideration of similar factors in deciding whether either should be granted.

Moreover, this Court can consider substantially settled the general question of a right to an injunction subsequent to declaratory judgment. Again, the Court of Appeals has provided a definitive statement of the rule, PPG Industries, Inc. v. Continental Oil Company, supra, at page 679, the Court saying:

* * * Both parties have repaired to the courts to settle their dispute and have alleged that in the relatively near future Conoco definitely will be unable or unwilling to perform fully its gas sale contract with PPG. This state of affairs tends to indicate that a sufficiently concrete case or controversy exists between the parties and that the threatened harm is sufficiently imminent and certain that the prayer for an injunction is not premature. See Pierce v. Society of the Sisters of the Holy Name of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. If Conoco’s conduct in failing to supply the amounts of gas agreed upon constitutes a breach of contract — an issue which we, of course, do not decide — then an injunction might ultimately be a proper remedy. See Standard Oil Company v. Lopeno Gas Company, 5th Cir. 1957, 240 F.2d 504.

*1365 See also Louisiana Power & Light v. United Gas Pipe Line Co., 456 F.2d 326 (5th Cir. 1972), reversed on other grounds, 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369.

Defendants’ request for specific performance by mandatory injunction is granted. Plaintiffs all say they wish to test the contracts. Under this mandate, they will deliver the cotton in accordance with the contract. This delivery is in no way to prejudice their right to recover damages, should these contracts be declared invalid by higher courts or by this court pn a possible remand.

WHAT LAW GOVERNS?

Four of the contracts under consideration contain a stipulation that they are to be governed by the laws of Tennessee.

Federal courts apply the conflicts of law rule of the forum. Klaxon Company v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

Louisiana Civil Code Article 10 states:

“The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.”

From this provision has developed the general rule that validity and construction of a contract is determined by the lex loci contractus and the remedy according to lex fori. Bologna Bros. v. Morrissey, 154 So.2d 455 (La.App. 2nd Cir. 1963).

Thus, when we consider the provisions in the contract it could be argued that Tennessee law should apply:

“If after investigation, it appears that the parties have indicated, either expressly or tacitly, that their rights and obligations should be governed by the laws of the place of performance then the court should not hesitate to apply the law to the ease.” McKane v. New Amsterdam Casualty Co., 199 So. 175, 182 (La.App.Orl.1940), quoted in Palmer v. Chamberlin, 191 F.2d 532, 536 (5th Cir. 1951).

However, in the “Law of Conflicts” there have been erosions and inroads into the rigid rule, exemplified in Article 10 of the Louisiana Civil Code. Numerous states have adopted the “most significant ¡ relationship” rule as set forth in Restatement (2nd), Conflicts of Law, section 332, in order to avoid lex loci contractus. As Judge Dawkins stated in Lester v. Aetna Life Ins. Co.,