United States v. Resolute Paper Products Corporation

247 F.2d 188

• Court: Court of Appeals for the Second Circuit
• Decided: September 11, 1957
• Docket: 24477_1
• Status: Published

Opinions

PER CURIAM.

Resolute Paper Products Corporation appeals from a judgment entered by Judge Ryan sitting without a jury holding that it breached its contract to sell toilet tissue to the Veterans’ Administration and awarding the plaintiff substantial damages. We have examined the correspondence of the parties and the negligible oral testimony concerning their modification of the price term in the summer of 1947. We disagree with the conclusion below that the term was increased from $.0552 to $.0607 per roll, since we find only a series of counteroffers. Consequently we have no difficulty in holding Resolute in breach for insisting on a price of $.0607. And on the issue of damages we do not find “clearly erroneous” the court’s finding that the substituted performance which the VA procured elsewhere was similar to that described in the contract, and hence a proper basis for the award as damages of the excess cost over the contract rate.

Lawrence v. Porter, 6 Cir., 63 F. 62, 26 L.R.A. 167, does not apply here to require the plaintiff to mitigate damages by allowing performance by Resolute at the higher rate. In that case a seller admitted that he was in breach and offered to perform on different terms. Here, however, Resolute’s willingness to perform at $.0607 was obviously on condition that the plaintiff agree that there had been no breach; Resolute’s price for an entirely new contract was not $.0607, but $.1300.

Affirmed.