187 F2d 234 McCarty v. United States

187 F.2d 234

McCARTY et al.

No. 13261.

United States Court of Appeals Fifth Circuit.

Feb. 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 5cents 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 5cents 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