The correspondence that passed between the plaintiff and defendant, in which the plaintiff was demanding a compliance with the contracts, and the defendant was merely offering excuses and making promises, does not convince me that the government's orders made it impossible for the defendant to fulfill the contracts. On the contrary, the defendant solicited and obtained the government contracts because the market value of the goods which the defendant was obligated to deliver to the plaintiff had risen to approximately double the prices stipulated in the contracts. There was nothing in the government contracts which made it impossible for the defendant to carry out the contracts previously made with the plaintiff. The theory on which the district judge founded his judgment — which has been adopted by the majority of the members of this court — seems to be that the plaintiff's acceptance of the goods that were shipped after the time stipulated in the contract, and the failure to put the defendant in default formally and to demand damages for nonperformance of the contract, immediately when the time stipulated for delivery of the goods expired, was an abandonment of the plaintiff's rights under the contracts. I know of no authority for that doctrine, particularly in a case like this, where the plaintiff continuously insisted upon a compliance with the contracts. For these reasons I respectfully dissent from the majority opinion and decree. *Page 21