Before MAJOR, Chief Judge, and KERNER and FINNEGAN, Circuit Judges.
This appeal is from a judgment for plaintiffs in a suit for damages for the alleged breach of two contracts for the sale of cotton materials. Defendant denied liability as to both contracts, with the exception of one item of the second. It asserted that the first contract had been abandoned by mutual consent after partial performance, and that the second provided for only 100,000 yards instead of the 200,000 charged in the complaint.Further error is asserted as to the measure of damages allowed for the first.
The first contract was for the sale of 150,000 yards of army duck to be delivered in four lots between December 31, 1945, and March 15, 1946. Although this contract contemplated delivery of material of a certain width and weight, it provided for the substitution of others, and the court found that there was actually delivered under the contract 104,158 1/4 yards, and that the dates specified in the contract for such deliveries were extended from time to time for indefinite periods by mutual agreement for the parties. The court further found that defendant failed to deliver the balance of 45,841 3/4 yards under the agreement; that the agreement was not cancelled or abandoned by plaintiffs; and that the market price of the duck contemplated by the agreement was 45.86 cents a yard on August 22, 1946. It accordingly concluded that plaintiffs were entitled to $4,290.78, the difference between the contract price of the goods and the market price on the date of the filing of the suit.
Defendant first contends that the finding of the court that the first contract was not cancelled or abandoned by the parties is against the manifest weight of the evidence and contrary to law. However, it is not the function of this court to weigh evidence. Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that findings of fact are not to be set aside unless clearly erroneous, due regard being given to the opportunity of the trial court to judge of the credibility of the witnesses. The evidence with respect to this issue was in conflict. In view of this conflict in the evidence, we cannot say that the finding based thereon was clearly erroneous.
A more difficult question is presented as to the matter for the measuring of damages. The contract itself specified that 25,000 yards should be delivered between December 13 and December 31, 1945, 25,000 before January 15, 1946, 50,000 by February 15, and 50,000 by March 15, 1946. The record shows that deliveries were actually made as follows:
9,526 yards December 28, 1945
31,294 3/4 February 1 to March 28, 1946