(concurring in the result):
I agree with the court that plaintiff’s sales to Continental for the Commodity Credit Corporation were not sales to the Government under the AEC contract. I also agree that plaintiff is not entitled to recover in this case, although I interpret the contract somewhat differently.
In my view, the contract obligated the Government to accept 187,500 pounds of beryllium, and to accept delivery at a rate of “approximately” 37,500 pounds each year. Of course, it could accept more than 37,500 pounds in any year, as it did during the third year of the contract. But the fact that plaintiff delivered more than 37,500 pounds in one year did not limit its right to deliver approximately that amount in a subsequent year, so long as the total deliveries under the contract did not exceed 187.500 pounds.
At the time plaintiff tendered the 15,-980.80 pounds in dispute, 172,154.96 pounds had already been delivered under the contract, leaving the Government still committed to accept another 15,345.-04 pounds. Plaintiff had delivered only 25,752.52 pounds during that year, and therefore it had the right to deliver an additional amount up to approximately 37.500 pounds. Since the Government was still obligated to accept 15,345.04 pounds under the contract, and since plaintiff had a right to deliver additional amounts during the year in which the Government rejected plaintiff’s tendered delivery, I would hold that the Government’s rejection was a breach of contract.
That breach does not mean, however, that plaintiff is now entitled to any of the damages it seeks. Plaintiff continued to deliver beryllium to the AEC, amounting to 21,537.94 pounds during the fifth year of the contract. During the entire contract period, plaintiff thus delivered 193,692.93 pounds, some 6,000 pounds more than the Government was required to accept. Plaintiff’s further deliveries and the acceptance of payment therefor, after the disputed tender, resulted in what I would hold to be a waiver of the Government’s breach.
Since plaintiff received all that was legally due it upon the completion of the contract, I agree that it is not entitled to recover anything in this action.