determining that delivery schedule was subsidiary portion for contract made for the convenience of both parties
How later courts described this case
- determining that delivery schedule was subsidiary portion for contract made for the convenience of both parties
Written by the judges who cited it.
The opinion
DAVIS, Judge
(concurring in part and dissenting in part):
I agree with the court as to the sales to Continental for the Commodity Credit Corporation, but disagree as to the place of the contractual figure of 37,500 pounds per year. I read the agreement as obligating the Government to purchase at least “approximately 37,500 pounds” each separate year, and the plaintiff as obligated to supply at least that amount each separate year until the contract maximum of 187,500 pounds is reached, but also as permitting the plaintiff to furnish and the defendant to take more than 37,500 pounds per year if they wished. That is, the amounts tendered and taken are cumulated for the purpose of computing the total of 187,500 pounds, but nevertheless 37,500 pounds must still be delivered and taken each individual year (up to the maximum); if the contract total has not been reached, deliveries in prior years do not reduce the 37,- *372 500 pounds which have to be taken in a new year. 1
My position, which seems to me to harmonize best with all the contract terms and with the parties’ own practice, disagrees with the court and the Government that the 187,500 pounds figure is the only operative factor, but also disagrees with the plaintiff that all deliveries above 37,500 pounds each year are disregarded in computing the total. It appears that, on my view, plaintiff could possibly be entitled to some recovery (though not as much as it asks) if, as I think and the court holds, the CCC sales are excluded. Of course, the amount awarded would have to take account, in mitigation of damages, of sums earned by plaintiff in otherwise disposing of the metal which the Government refused to take; that is a problem, not adequately exposed before us, which I would leave to the trial commissioner.
. For example, although deliveries through 1962 total 172,154.96 pounds — 22,154.96 pounds more than the 150,000 minimum (37,500 X 4 years) called for in the four-year period from July 1, 1958, through June 30, 1962 — the Government -would not be able to credit this excess 22,154.96 pounds against the 15,345.04 pounds (187,-500 minus 172,154.96) due in the fiscal year beginning July 1, 1962.