affecting each contract were the fruitful result of the said combination. There is evidential admission in the plea of guilty to the conspiracy charge which affected all contracts from April 1, 1947 to July 6, 1949 (though actually the Government in its civil suits confines its claims to contracts fulfilled between April 1, 1948 and January 31, 1949) including those referred to in counts one to ninety-nine. If the additional proof adduced be sufficiently compelling, then in determining the damage resulting from the conspiracy, the sum total of all the improper material furnished in fulfilling the contracts may be used in measuring the amount of loss to the Government, rather than any individual indications of inferior material furnished (losses suffered by the Government) in each contract, since the damage flowed from one and not ninety-nine conspiracies. This is in conformity with the established principle that where a defendant by his own wrong has prevented a more precise computation of damages, just and reasonable estimates of these damages based on relevant data may be used.
'The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created. * * * and in cases of confusion of goods, Great Southern Gas & Oil Co. v. Logan Natural Gas & Fuel Co., 6 Cir., 155 F. 114, 115; cf. F. W. Woolworth Co. v. N. L. R. B., 2 Cir., 121 F.2d 658, 663, the wrongdoer may not object to the plaintiff's reasonable estimate of the cause of injury and of its amount, supported by the evidence, because not based on more accurate data which the wrongdoer's misconduct has rendered unavailable. * * *
"The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery' for a proven invasion of the plaintiff's rights. Story Parchment Co., v. Paterson Parchment Paper Co., 1931, 282 U.S. $ 555$ , 565, 51 S. Ct. $ 248$ , 251, 75 L. Ed. 544 and see, also, Palmer v. Connecticut R. (& Lighting) Co., 311 U.S. 544, 559, 61 S. Ct. 379, 384, 85 L. Ed. 336, and cases cited.' Stone, C. J., in Bigelow v. RKO Radio Pictures, 1946, 327 U.S. 251 , 265, 66 S. Ct. 574, 580, 90 L. Ed. 652. See, also, Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 60 S. Ct. 681, 84 L. Ed. 825; Eastman Kodak Co., v. Southern Photo Co., 1927, 273 U.S. 359, 47 S. Ct. 400, 71 L. Ed. 684.
It would seem, therefore, that on the strength of the plea alone the Government would not be entitled to summary judgment as to liability.
In so far as the forfeitures are concerned, they may be assessed if in each individual count the Government properly proves defendants have violated any or all of the three classes of infractions of 31 U.S.C.A. § 231, as set forth in the complaint. See United States v. Rohleder, 3 Cir., 1946, 157 F.2d 126.
For the reasons herein set forth, the motion of the Government is denied except in so far as it affects the judicial admission of guilt as to the overall conspiracy.
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