concurring in the judgment.
I concur in the affirmance of the district court’s judgment, although I do not share the majority’s reasoning.
On the issue of restitution, the district court correctly observed that there was no transfer of money or property from Hydranauties to FilmTee after the judgment in favor of FilmTee, and that Hydranauties’ requested recovery is simply a request for damages during the period between trial and appeal. The unavailability of damages for this period reflects longstanding practice and policy. The railroad and utility rate cases wherein overcharges were restored to the customers, viz. Arkadelphia Milling Co. v. St Louis S.W. Ry. Co., 249 U.S. 134, 39 S.Ct. 237, 63 L.Ed. 517 (1919) and Baltimore & Ohio Ry. Co. v. United States, 279 U.S. 781, 49 S.Ct. 492, 73 L.Ed. 954 (1929), and cases wherein government agencies recovered overpayments based on statute or regulation, viz. Maryland Dep’t of Human Resources v. United States Dep’t of Agriculture, 976 F.2d 1462 (4th Cir.1992) and National Kidney Patients Ass’n v. Sullivan, 958 F.2d 1127 (D.C.Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 966, 122 L.Ed.2d 122 (1993), are not authority, even in dictum, for recovery of losses of the nature of damages resulting from the decision at trial.
Restitution is a standard remedy for breach of contract and for the return of specific property and monies paid. The district court correctly held that Hydranauties’ business losses during the period between trial and appeal are not directly recoverable as damages and thus are not indirectly recoverable in the guise of restitution. This implements the longstanding rule, as stated in Russell v. Farley, 105 U.S. 433, 26 L.Ed. 1060 (1881), that “[w]here no bond or undertaking has been required, it is clear that the court has no power to award damages sustained by either party in consequence of the litigation, except by making such a decree in reference to the costs of the suit as it may deem equitable and just.” See Restatement of Restitution § 74 (1937) and Comment a. This practice reflects the policy that legitimate business activity upon favorable judgment is not a wrong. As Lord Mansfield put it, restitution “lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or implied); or extortion; or oppression; or an undue advantage taken of the plaintiffs situation, contrary to the laws made for the protection of persons under those circumstances.” Moses v. McFerlan, 97 Eng.Rep. 676, 681 (K.B.1760), cited in Richard A. Epstein, The Ubiquity of the Benefit Principle, 67 S.Cal.L.Rev. 1369, 1370 & n. 6 (1994).
I would affirm the district court’s holding, not on the ground of absence of clear error, but as a matter of correct understanding and application of the law.