RESTITUTION-UNJUST ENRICHMENT-RIGHT OF DEFAULTING PURCHASER TO RECOVER PART PAYMENT

Plaintiff made a prepayment of $59,946.67, or twenty-five percent, on twenty printing presses which it was purchasing for shipment to Russia. Before their delivery a federal regulation was promulgated under which plaintiff was denied an export license. Plaintiff therefore rejected tender of the presses, and defendant vendor sold them to a third party for $18,765 more than the contract price to plaintiff. Plaintiff sued to recover its down payment and the profit resulting from defendant's resale.

On appeal from a judgment for defendant, held, reversed and remanded. A defaulting purchaser is entitled to restitution of its payments in excess of damages caused the vendor by the breach, but it is not entitled to any profits realized by the vendor from resale of the goods. Amtorg Trading Corp. v. Miehle Printing Press & Mfg. Co., (2d Cir.

1953) 206 F. (2d) 103.