UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: March 11, 1969.
THEODORE SKOV D/B/A TEDDY'S FISH SHOP
THE CHASE MANHATTAN BANK, APPELLANT
Freedman, Van Dusen and Aldisert, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
On this appeal, defendant seeks reversal of a judgment for plaintiff, entered following a trial to the court, for damages which the trial judge found resulted from defendant's dishonoring, through an error, plaintiff's check given to its supplier of cleaned kingfish and dolphin.
After a careful review of the record, we have determined that the defendant's contention that there is no substantial evidence (see F.R.Civ.P. 52(a)) to support the trial judge's findings that by reason of this dishonor, the supplier terminated its arrangement of storing the above-mentioned fish for future delivery to plaintiff, without payment until delivery, and that such termination made it impossible for plaintiff to continue its sales of such fish to the hotel customers who had been buying such fish from it during the first quarter of 1967, must be rejected.*fn1 Also, the record discloses that there was substantial evidence*fn2 in support of the amount of consequential damages which the experienced and able trial judge found (DA 106-108) had been proximately caused by the bank's mistake.
The trial judge properly relied on § 4-402*fn3 of the Uniform Commercial Code (11A V.I.C. § 4-402), which is not a model of clarity in its reference to "damages proximately caused", "actual damages proved", and "consequential damages."*fn4 However, the statutory language used authorized the trial judge on this record to award damages by determining the annual loss of profits to plaintiff from the termination of his relationship with his supplier and to project this loss for a three-year period. Cf. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 262-266, 66 S. Ct. 574, 90 L. Ed. 652 (1946); American Motors Sales Corporation v. Semke, 384 F.2d 192, 199-200 (10th Cir. 1967). The only appellate court case which counsel or the court has been able to find applying this statutory language concerning damages is fully consistent with the determination made by the fact finder in this case. See Loucks v. Albuquerque National Bank, 76 N.M. 735, 418 P.2d 191 (1966).*fn5
The judgment of the District Court will be affirmed.