Before DUFFY, Chief Judge, and MAJOR and FINNEGAN, Circuit Judges.
In this suit plaintiff seeks to recover $65,231.00 from defendant claiming it has suffered a loss in that amount because of defendant's alleged breach of contract. Recovery is sought either as the unpaid balance of the purchase price, as damages for breach of contract or as restitution for unjust enrichment.
Commodity Credit Corporation, the defendant herein, a corporate agency of the U.S. Department of Agriculture, issued Announcement FO-22 under date of August 13, 1946 whereby it announced the contemplated purchase of 15,000,000 pounds of oleomargarine made from coconut oil. On August 30, 1946 plaintiff submitted a bid on the usual form to provide one million pounds of oleomargarine at $.1653 per pound. In a letter accompanying the bid, plaintiff stated: "Summing this up, we are bidding $16.53 per cwt. on a million pounds of coconut margarine for delivery in October and November and will give you the best product possible. It is meets with your approval, we could consider another one-half million for delivery later on."
On September 10, 1946, and before its bid had been accepted, plaintiff sent the following telegram to the Department of Agriculture: "Reference our recent bid Announcement FO-22 this should read $16.53 as firm bid based on present oil market Stop Would appreciate advise as promptly as possible on this as necessary we make arrangements for tins and cases."
Defendant replied by telegram on the same date, as follows: "Subject terms and conditions FO-22 CCC accepts your offer dated August 30, 1946, as amended by telegram of September 10, for 1,000,000 pounds of Coconut Oil Margarine at $0.1653 per pound fob Elgin, Illinois. * * *" Plaintiff wired the defendant on September 13, 1946: "Retal September 11th confirm contract Aw-f(F) 42190 for 1,000,000 pounds margarine at $.1653 per pound fob Elgin, Illinois."
On September 25, 1946, plaintiff submitted the following telegraphic offer: "We are in position to make additional half million pounds coconut oil margarine late November delivery at same price as per contract, namely $16.53 cwt. FOB Elgin. Please consider this as firm offer and advise if acceptable." Defendant wired plaintiff on September 25, 1946 that its contract was amended to accept an additional 500,000 pounds of coconut oil margarine for November delivery.
On October 2, 1946 plaintiff telegraphed that it would make delivery of the additional 500,000 pounds during the week of November 25. However, plaintiff failed to make such delivery, and on November 11, 1946 wrote to defendant in part as follows: "We find ourselves in difficulties insofar as additional 500,000 pounds of coconut oil margarine, scheduled for November delivery, is concerned. * * * Of course, when we entered this bid, we had no idea that OPA regulations would be lifted. * * * The market today, on coconut oil is .25. In view of this, we would appreciate your indulgence in either cancelling this part of the contract, or holding it in abeyance until we are assured of a cost on the oil which will permit us to manufacture it at a profit." The letter concluded with the words: "Awaiting your suggestion on this we are * * *."
By telegrams dated January 9 and January 17, 1947, defendant requested delivery dates and shipping schedule. Plaintiff wrote letters dated January 20 and February 3, 1947, requesting further delay in fulfilling the contract until the market on coconut oil decreased so as to keep it from losing money. In the letter of January 20 plaintiff said: "Again we would appreciate your holding this in abeyance until the market would allow us to pack it, at least, without a loss."
Defendant replied on March 4, 1947 that the contracting officer was not authorized to make any adjustment in price nor to amend the existing contract so as to increase the cost to the Government. Plaintiff was given until March 7, 1947 to give its unqualified assurance in writing that deliveries would be made not later than April 30, or the contract would be considered "terminated with no right to delivery remaining in contractor." On March 10, 1947 plaintiff wired that it would proceed with the contract. The terms of the telegram were confirmed by letter dated March 11, 1947. Such confirmation was without any reference to an adjustment in price. Plaintiff then proceeded to make delivery. Thereafter plaintiff appealed to the Contracts Dispute Board, and on April 19, 1948 that Board denied the appeal. This suit was then commenced.
The bid and acceptance for the first 1,000,000 pounds of oleomargarine are not here in issue. The dispute before us pertains only to the one-half million pounds mentioned in plaintiff's telegraphic bid under date of September 25, 1946.
OPA's price ceilings on coconut oil were removed on October 30, 1946. On September 25 when plaintiff submitted its bid on 500,000 pounds, the price of coconut oil was $.1409 per pound. On December 4, 1946 the price for such oil was 24 cents per pound.
Plaintiff relies upon the August 13, 1946 announcement by the United States Department of Agriculture, Production and Marketing Division, which stated in the first paragraph thereof: "In order to meet definite supply needs, the U.S. Department of Agriculture hereby announces contemplated purchases by the Commodity Credit Corporation (hereinafter referred to as CCC) of 15,000,000 pounds of Oleomargarine, colored (Special) made from coconut oil for export. CCC will arrange to provide a source of supply of crude coconut oil at ceiling price in the event that the successful bidder (or bidders) are not in a position to procure crude coconut oil through usual channels. * * * Offers must be submitted on prescribed Form FOO-22 in an original and three signed copies * * *. Inasmuch as additional purchases may be made by CCC subject to the same terms and conditions contained herein, it is suggested that you retain this announcement in your files for future reference."
In about the center of the announcement there appeared a sub-heading: "Terms and Conditions." Beneath the sub-heading appeared the following: "In submitting an offer to sell, the terms and conditions of this announcement and those set forth in 'Standard Contract Conditions' * * * shall become a part of the offer to sell and upon ...