dissenting:
There was no delay in the actual delivery of the eggs. It is admitted that plaintiff made prompt delivery of all shipments as requested. There being no delay in the delivery of the product there was no occasion to assess liquidated damages.
Had the Government desired earlier shipment, within the •date specified, and had the plaintiff been unable to promptly comply due to any failure to have the eggs, dried, inspected, and ready for shipment, it would have been entirely proper ■to assess liquidated damages, since the actual damages would have been difficult to establish. No such state of facts is presented here. All deliveries were made without any delay whatever.
Both plaintiff and defendant were operating under great difficulties. Wartime shortages are frequently cruel to both the producer of the article and the nation that has overwhelming need of the supply. I appreciate the fact that it was necessary for the Government to have a strong protective provision in order to assure that every effort would be made to have the essential supplies ready when needed. *811But tbe very strength of the provision calls for a fair interpretation and a just application.
A careful reading of the provisions of the contract takes away all basis of the Government’s claim to make a deduction. Paragraph 7 says that “Failure to have specified quantities of eggs inspected and ready for delivery by the date specified in the offer will be cause for invoking the provisions of paragraph 9.”
Paragraph 9 provides that “Failure to deliver the quantity specified in the contract in accordance with the terms of the announcement” shall be ground for assessing liquidated damages [italics supplied]. Concededly there was neither failure of nor delay in delivery. The facts do not meet the specifications required as a condition to the assessing of liquidated damages. The fact that the Government could have asked for earlier delivery but didn’t is not sufficient grounds for penalizing the plaintiff. The case of United States v. Bethlehem, Steel Co., cited in the court’s opinion, is inapplicable since in that case there was delay in delivery.
To construe the contract in such a way as to require plaintiff to have the goods ready for delivery even though the defendant was not ready to accept them, and at the same time permit the defendant to delay taking them or to refuse to take them altogether, putting plaintiff to the expense of storage and possibly loss through spoilage with no obligation on the part of the Government to accept them, would be an extreme interpretation.
Failure to comply with paragraph 7 simply brings paragraph 9 into play. Paragraph 9 governs the assessing of liquidated damages. Its terms limit defendant’s right to assess damages to “Failure to deliver” and not to mere failure to have been ready for delivery at a previous time. This seems perfectly clear to me.
There were no damages. There could have been none until the Government was ready to accept shipment. In the circumstances of this case liquidated damages should not be assessed.
MaddeN, Judge, took no part in the decision of this case.