Fishel Products Company, a Copartnership Consisting of Edward R. Fishel and John D. Fishel v. Commodity Credit Corporation

Fishel Products Company (“Fishel”) appeals from a summary judgment entered in favor of Commodity Credit Corporation (“CCC”), a corporation wholly owned by the United States. Fishel contracted to process into bulgur wheat owned by CCC. Bulgur is parched crushed wheat which is used as a dietary staple in some parts of the world.

Under one contract, dated November 28, 1962, Fishel agreed to process 5,600,-000 pounds of bulgur of a specified quality and deliver it on or before January 24, 1963. Under a second contract, dated December 28, 1962, Fishel agreed to process 6,000,000 pounds and deliver it by February 25, 1963. Under both contracts, Fishel agreed to supply performance security, and its failure to do so was expressly made a material breach of the contracts entitling CCC to terminate. CCC could reject bulgur which was below the specified quality, or accept such bul-gur with a provision for specified liquidated damages.

Among the “Uniform Contractual Provisions” incorporated by reference into the CCC-Fishel contracts were articles 23 and 39, providing respectively:

From January through March of 1963, Fishel processed 26 lots of bulgur, of which it tendered 24 to CCC. Of the…