Mccarty et al. v. United States, 187 F.2d 234 (5th Cir. 1951)

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US Court of Appeals for the Fifth Circuit - 187 F.2d 234 (5th Cir. 1951) February 13, 1951

Charles W. Greer, Birmingham, Ala., for appellant.

John D. Hill, U.S. Atty., and William L. Hogue, Asst. U. S. Atty., Birmingham, Ala., for the United States.

Before McCORD, BORAH and RUSSELL, Circuit Judges.


Appellants complain that the evidence has been misstated in our former opinion, wherein we held that the Government showed its good faith by a reasonable effort to minimize the damages "under a new contract with other parties at a rate of 5¢ per man per month."

It is true that the contract in question does not expressly so provide. But it is without dispute that the amount realized under the new contract was 5¢ per man per month. Moreover, appellants further admit that both the General Accounting Office and the trial court assumed that the contract carried the rate suggested, and the jury was charged to that effect. Under such circumstances, we are constrained to adhere to our former opinion, and the petition for rehearing is hereby