EASTERN AIR LINES, INC., PLAINTIFF-APPELLANT-CROSS APPELLEE,

v.

MCDONNELL DOUGLAS CORPORATION, DEFENDANT-APPELLEE-CROSS APPELLANT

AINSWORTH, Circuit Judge:

This important Florida diversity case involves an appeal from-a judgment for damages for breach of contract in

,000 (2) 1967 in ^ m

,000 (3) 1968 o cn csi

,000 (c) DC-8-61 Aircraft for (1) 1966 m co

,000 (2) 1967 m r-o co

,000 (3) 1968 in o m

2. Wasted Pilot Training 313,438

3. Surplus Pilot Time Expense $ 1,816,163

4. Wasted Schedule Expense $ 200,000

INTEREST: To be determined from categories 1(a)(b)(c) and², 3, and⁴ above and⁵ below.

1(a) (1) DC-9-14 Aircraft 561,000

1(b) (1) DC-9-31 Aircraft 000

1(b) (2) DC-9-31 Aircraft $ 1 132,200

1(b) (3) DC-9-31 Aircraft 816,000

1(c)(1) 1(c) (2) DC-8-61 DC-8-61 Aircraft Aircraft $ $ 35,062 2,907,000

1(c) (3) DC-8-61 Aircraft $ 1,351,500

2. Wasted Pilot Training $ 129,291 $ 749,162 3. Surplus Pilot Time Expense

4. Wasted Schedule Expense $ 72,000

5. Depreciation Reserve $ 1,897,500

So say we all.

Jonathan Gillingham, FOREMAN

.In addition, Eastern was awarded $514 under Rule 37(b) because of McDonnell’s failure, in several instances, to comply with discovery orders.

.The delivery dates originally specified in Contract 65-41-L are as follows:

FAA Registration No. Delivery Date

N8901E March 1966

N8902E March 1966

N8903E April 1966

N8904E April 1966

N8905E May 1966

N8906E May 1966

N8907E June 1966

N8908E June 1966

N8909E July 1966

N8910E July 1966

N8911E August 1966

N8912E August 1966

N8913E September 1966

N8914E September 1966

N8915E October 1966

. Side Letter Agreement No. 10, July 9, 1965.

. Lease back financing is a way of life in the aircraft industry. Rather than borrowing the money needed to purchase a plane, a manufacturer or a purchaser causes a third party to buy the aircraft and lease it back to the airline. From the standpoint of the financing party, the lease is merely another way of lending money to the aircraft operator. Because the underlying agreement for the acquisition of the plane remains between the manufacturer and the airline, the lessor’s principal function in the transaction is to supply the purchase price. The airline, on the other hand, accepts delivery and actually operates the aircraft financed by the lease back method.

.

Amendments to Contract 65-41-L

Amendment Aircraft

No. Date Buyer No. 1 4/26/66 Railway Equipment Leasing Corporation N8901E

. Contract 66-119-D, entitled a “Purchase Agreement” governed Douglas’ sale of the ten planes to Bankers Trust. Eastern’s relationship with the bank was governed by a “Lease” also executed on July 14, 1966.

.

Plane 65-41-1, Bankers Trust Actual Delivery Days Late Under Days_Late Under No. Delivery Date Delivery Date Date 65-41-L Bankers ~Trust

N8906E 5/66 7/66 7/19/66 49 0

N8907E 6/66 8/66 8/29/66 60 0

N8908E 6/66 8/66 9/11/66 73 11

N8909E 7/66 9/66 11/7/66 99 38

N8910E 7/66 9/66 10/27/66 68 27

N8911E 8/66 10/66 11/24/66 85 24

N8912E 8/66 10/66 11/30/66 91 30

N8913E 9/66 11/66 12/22/66 83 22

N8914E 9/66 11/66 12/29/66 90 29

N8915E 10/66 12/66 2/8/67 57 0*

Total 755 Total 181

*

Aircraft N8915E was accepted by Bankers trust on December 31, 1966, and was therefore delivered on time.

. These planes, numbered N8909E through N8915E, were the last seven DC-9-14’s scheduled to be delivered under Contract 65-41-L. See note 9 supra.

. District Court’s Order on DC-9-14 Delivery Dates, filed March², 1973.

. Douglas also contends that Eastern’s claims arising from the late delivery of the first five DC-9-14’s to be delivered were waived by the five amendments to Contract 65-41-L which accompanied the sale of those planes to leasing corporations. For reasons to be discussed below, we do not reach this issue.

. The relevant contract provision is set out at note⁵ supra.

. It is helpful to compare the wording of this provision with that of the clause inserted in the amendments to Contract 65-41-L which accompanied the sale of each of the first five planes produced under the contract. See note 12 supra. Each of these amendments specifically provided that “[a]U the terms of this Agreement shall remain in full force and effect except as herein expressly changed . "

. In California as elsewhere, “[t]he words used in a contract must be given their ordinary meaning, unless there is evidence that the parties intended to use them in a unique sense or to give the words some different meaning.” Moss Development Co. v. Geary, 1974, 41 Cal. App.3d 1, 9, 115 CaI.Rptr. 736, 741.

. Webster’s Third New International Dictionary 13 (unabridged ed. 1961); see Uniform Commercial Code § 2-725(2); Irvine v. Bossen, 1944, 25 Cal.2d 652, 155 P. 2d 9, 13.

. See note 9 supra.

. As will be demonstrated below, even if these obligations were deemed to have “accrued” pri-or to the termination of Contract 65 — 41-L, they would nevertheless be barred by California’s four-year statute of limitations.

. Eastern also points to an internal memorandum prepared by a McDonnell official in 1969 after Eastern had formally presented its claim. This document construed the termination agreement as preserving the original contract dates specified in Contract 65^11-L. Even if this document cast any light on the intention of the parties at the time Contract 65-41-L was entered into, it would not be admissible to prove a meaning contradictory to the clear language of the termination agreement. See Brant v. California Dairies, Inc., 1935, 4 Cal.2d 128, 133, 48 P. 2d 13, 16; Crow v. P. E. G. Construction Co., 1957, 158 Cal.App.2d 271, 319 P. 2d 47, 50; Cal.Civ.Code §§ 1638, 1639; Cal.Comm.Code § 2202. See generally R. Nordstrom, Handbook on the Law of Sales §§ 46, 53 (1970).

. These are the DC-9-14’s numbered N8909E through N8915E. See note 9 supra.

. Inasmuch as the point was neither ruled on by the court below nor briefed before us, we intimate no view on the question of whether Eastern was a third-party creditor beneficiary under Douglas’ agreement with Bankers Trust.

. Fla.Stat. § 95.10 provides as follows:

Limitation upon causes of actions arising out of the state

When the cause of action has arisen in another state or territory of the United States, or in a foreign country, and by the laws thereof an action thereon cannot be maintained against a person by reason of the lapse of time, no action thereon shall be maintained against him in this state.

. The trial judge erred in applying the four-year limitation period established by section 2-725 of the California U.C.C. which is applicable only to actions accruing after its effective date. Cal.Comm.Code § 2725(4). Because section 2-725 was not enacted in California until 1967, Contract 65—41-L is governed by section 337 of that state’s Code of Civil Procedure which applies a four-year limitation period to written contracts. These two sections, however, are in accord. Hachten v. Stewart, Super.Ct.1974, 42 Cal.App.3d Supp. 1, 3, 116 Cal. Rptr. 631, 632.

. See note 9 supra.

. As we have seen, the choice of law provision found in all the contracts refers us to California law. See note⁵ supra. California has adopted section 2-607(3)(a) without change. Cal. Comm.Code § 2607(3)(a).

. Notification under section 2-607 is an integral part of a buyer’s cause of action and is not an affirmative defense of the seller. Therefore, the buyer must both plead and prove that the notice requirement has been complied with. See Redfield v. Mead, Johnson & Co., 1973, 266 Or. 273, 512 P. 2d 776; L. A. Green Seed Company of Arkansas v. Williams, Ark. 1969, 438 S.W. 2d 717; Carey v. I. J. Kayle & Associates, 1970, 122 Ill.App.2d 403, 259 N.E. 2d 304; 2 R. Anderson, Uniform Commercial Code § 2— 607:22-23 (1971).

.In relevant part, the Zimmerman opinion reads as follows:

In the present, as in any case involving late delivery, both the seller and the buyer are necessarily fully aware prior to tender that the seller’s contract obligation to timely deliver has not been complied with. It would be an unreasonable, if not absurd, construction of the statute to require a renewed notice of breach after acceptance of the goods under the facts here involved. A party has notice of a fact when he has actual knowledge of it. Section . . . 1-201(25) of the Uniform Commercial Code. The purpose of a notice in the context of this section . is to inform the seller of matters which would not normally come to the buyer’s attention until after the goods came into his possession. The legislative intent was to make provision with respect to the effect of acceptance of allegedly defective or inferior goods or those allegedly not meeting warranted standards of quality. In that situation it is reasonable to require the buyer to inform the seller of the existence of a possible factual dispute relating to matters of which the buyer presumably was not aware prior to his acceptance of a tender of the goods.

Jay V. Zimmerman Company v. General Mills, Inc., E.D.Mo., 1971, 327 F.Supp. 1198, 1204 (emphasis in original).

. Reininger v. Eldon Mfg. Co., 1952, 114 Cal. App.2d 240, 250 P. 2d 4, 7; see the authorities cited by the California Supreme Court in Franck v. J. J. Sugarman-Rudolph Co., 1952, 40 Cal.2d 81, 251 P. 2d 949, 953.

. This provision of the Uniform Sales Act is similar in wording to section 2-607:

In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor. Uniform Sales Act § 49.

. Section 412 of the Restatement of Contracts states the same rule as the Uniform Sales Act. Franck v. J. J. Sugarman-Rudolph Co., 1952, 40 Cal.2d 81, 251 P. 2d 949, 953. Illustration (1) under section 412 gives the following example:

A contracts to sell to B a specific automobile on June 1. A tenders it on June 15 and B accepts it without comment. On July 15, B brings an action against A for injury caused by the fortnight’s delay. B cannot recover. . See, e. g., Klein v. American Luggage Works, Inc., Del., 1960, 2 Storey 406, 158 A. 2d 814; Wildman Manufacturing Co. v. Davenport Hoisery Mills, 1923, 147 Tenn. 551, 249 S.W. 984; Trimount Lumber Co. v. Murdough, 1918, 229 Mass. 254, 118 N.E. 280; Mason v. Valentine Souvenir Co., 1917, 180 App.Div. 823, 168 N.Y.S. 159.

.The Code Comment for section 2-607 indicates that the purpose of the provision is “[t]o continue the prior basic policies with respect to acceptance of goods while making a number of minor though material changes in the interest of simplicity and commercial convenience.” California Code Comment No. 4 states that the provision “continues the rule of former § 1769.”

.See Phillips, Notice of Breach in Sales and Strict Tort Liability Law: Should There Be A Difference?, 47 Ind.L.J. 457, 469 & n. 51 (1972).

. Notice, however, is not required when the seller has failed to deliver the goods. Chemetrom Corporation v. McLouth Steel Corporation, N.D.Ill., 1974, 381 F.Supp. 245, 254; R. Nordstrom, Handbook of the Law of Sales 425 (197(5). Section 2-607, by its terms, does not apply where there has been no tender or acceptance of the goods.

. District Court’s Order Granting in Part Defendant’s Motion for Judgment Notwithstanding the Verdict and Denying Defendant’s Motion for New Trial, March 26, 1974.

. See note⁴ supra.

. In a memorandum to Mr. McDonnell, apparently written after Eastern had formally presented its claim in 1969, McGowan wrote concerning this conversation:

From his remarks I took him to mean that he was trying to be understanding of our problems and, did not anticipate taking legal action. On the other hand, I did not get the opinion that he was giving up his legal rights. We note here that section 2-607 does not require an explicit waiver of legal rights for a buyer’s claim to be defeated. McGowan’s memorandum, therefore, does not necessarily support the trial court’s directed verdict on the notice issue.

. Bonebrake v. Cox, 8 Cir., 1974, 499 F. 2d 951, 956-57 (letter informing seller that equipment not installed within meaning of contract sufficient notice as a matter of law); Lewis v. Mobil Oil Corporation, 8 Cir., 1971, 438 F. 2d 500, 509 (constant communications from buyer concerning his suspicion that improper oil was being supplied sufficient to support jury verdict of adequate notice); Boeing Airplane Company v. O’Malley, 8 Cir., 1964, 329 F. 2d 585, 593-96 (failure to perform properly in front of seller’s expert and resulting shutdown of buyer’s operations sufficient evidence for jury’s finding on notice).

. J. White & R. Summers, Handbook of the Law under the Uniform Commercial Code 347-48 (1972). The authors of this treatise conclude that

Quite clearly the drafters intended a loose test; a scribbled note on a bit of toilet paper will do. . . . Under [Comment No. 4], it is difficult to conceive of words which, if put in writing, would not satisfy the notice requirement of 2-607. Indeed a letter containing anything but the most exaggerated encomiums would seem to tell the seller that the transaction “is still troublesome and must be watched.”

See R. Nordstrom, Handbook of the Law of Sales 430 (1970).

. See, e. g., Moosbrugger v. McGraw Edison Company, 1969, 284 Minn. 143, 170 N.W. 2d 72, 78-80; Nugent v. Popular Markets, Inc., 1967, 353 Mass. 45, 228 N.E. 2d 91, 94; Clarizo v. Spada Distributing Co., 1962, 231 Or. 516, 373 P. 2d 689, 692-93, 693 n. 4; Ezer, The Impact of the Uniform Commercial Code on the California Law of Sales Warranties, 8 U.C.L.A.L.Rev. 281, 332 (1961); Project: A Comparison of California Sales Law and Article Two of the Uniform Commercial Code (Part II), 11 U.C.L. A.L.Rev. 78, 90 (1963); Note, Notice of Breach and the Uniform Commercial Code, 25 U.Fla.L. Rev. 520, 536 (1973).

. Whitfield v. Jessup, 1948, 31 Cal.2d 826, 193 P. 2d 1, 4; see Silvera v. Broadway Department Store, Inc., S.D.Cal., 1940, 35 F.Supp. 625, 626.

. Clarizo v. Spada Distributing Co., 1962, 231 Or. 516, 373 P. 2d 689, 692-93; see Dailey v. Holiday Distributing Corp., 1967, 260 Iowa 859, 151 N.W. 2d 477; Lieberman v. W. M. Gulliksen Mfg. Co., 1955, 332 Mass. 439, 442-43, 125 N.E. 2d 396, 398.

. This occurred in at least two California decisions. Silvera v. Broadway Department Store, Inc., S.D.Cal. 1940, 35 F.Supp. 625, 626; Arata v. Tonegato, 1957, 152 Cal.App.2d 837, 314 P. 2d 130, 132-33.

. Uniform Commercial Code § 2-607, Comment 4.

. Section 2-104(1) defines “merchant” as “a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction . .” Comment No. 2 to this section provides that

“[t]he term ‘merchant’ as defined here roots in the ‘law merchant’ concept of a professional in business. The professional status under the definition may be based upon specialized knowledge as to the goods, specialized knowledge as to business practices, or specialized knowledge as to both . . .

. Section 2-103(l)(b) reads as follows: “ ‘Good faith’ in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.”

. Although the following statement concerns the time in which notification must be given, we consider it equally applicable to the issue of the content of adequate notice under section 2-607:

The time of notification is to be determined by applying commercial standards to a merchant buyer. “A reasonable time” for notification from a retail consumer is to be judged by different standards .

Uniform Commercial Code § 2-607, Comment 4.

. See Greenman v. Yuba Power Products, Inc., 1962, 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P. 2d 897, 900 (Traynor, J.); Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1130 (1960); Note, Notice of Breach and the Uniform Commercial Code, 25 U.Fla.L.Rev. 520, 536-38 (1973).

. The exchange of letters relied on by the trial judge was concerned exclusively with delays arising under Contract 65-41-L which, as we have seen, cannot be the subject of an action by Eastern. See Part II supra.

. Indeed, the Code focuses so heavily on the buyer’s conduct that notice is deemed given merely if the notifying party has taken reasonable steps to give the requisite notice to his counterpart. Uniform Commercial Code § 1-201(26) [Cal.Comm.Code § 1201(26)]. Thus, if a reasonable effort has been made by the buyer, it is not necessary that the seller actually learn of the breach for a buyer’s rights to be preserved under section 2-607. Smith v. Butler, 1973, 19 Md.App. 467, 311 A. 2d 813, 817.

. We emphasize that even though a buyer’s notification under this test may be adequate in terms of content, it may nonetheless be untimely. See Uniform Commercial Code § 2-607 Comment 4. The jury could have found, for example, that Eastern had given timely notice with regard to only some of the delivery delays.

. Eastern’s 1966 Annual Report, for example, stated that the aircraft deliveries were being delayed because of “the war demands on the aerospace industry and its suppliers.”

. On March², 1966, an Eastern press release stated that its “ability to increase available seat miles ... is being restricted by the slow rate of the new aircraft deliveries by both Boeing and Douglas caused by the military requirements in Viet Nam.”

. Before the Civil Aeronautics Board, on December 8, 1967, Eastern stated that “Eastern, like other purchasers, has experienced substantial delays in delivery of DC-9-31 aircraft, largely because of military requirements for the Vietnam conflict.”

. At oral argument, in fact, Eastern’s counsel stated that the airline’s representative at the Douglas plant “had a better estimate of when the planes were coming out than Douglas did.”

. Counsel for Eastern conceded as much in oral argument. When questioned by the court concerning when the airline first became aware of Douglas’ internal problems, Eastern’s counsel stated that by the summer of 1966 both Eastern and the general public “became aware of what the problems were inside of Douglas.”

. We recognize, of course, that once an airline begins to build a fleet with a particular make of airplane it cannot easily switch to a competing manufacturer. Eastern, therefore, is correct in pointing out that as of 1965, it was effectively “married” to Douglas. The conjugal nature of its relationship with Douglas, however, did not relieve Eastern of its obligation of commercial good faith. As we have seen, the notice requirement reconciles the seller’s right to early warning of claims for breach with the need to accommodate the buyer who, for reasons of necessity, has to accept a tender which is not in full compliance with the contract. In a continuing contractual relationship, therefore, the buyer must decide whether the benefits of claiming a breach of contract outweigh the need for a close rapport with the seller. .McDonnell also contends that the District Judge erred in ruling against and not submitting to the jury its contentions that Eastern had waived its claims and was otherwise estopped from pursuing this cause of action. Because they parallel McDonnell’s contentions under section 2-607 and are based on the same evidence, the defenses of waiver and estoppel will be effectively decided by the jury’s determination of the notice issue. See note 42 supra. Our holding concerning section 2-607, therefore, obviates the need for any separate consideration of these contentions. However, because we find no reasonable support in the record for McDonnell’s contention that Eastern executed an accord and satisfaction with it, we do conclude that the District Judge correctly ruled against McDonnell on this particular issue.

.One expert witness testified that, prior to the fiscal year ending in 1966, the Vietnam conflict imposed no more than $100 million a year in “additional costs” on the military budget. This is a relatively insignificant factor in a $50 billion military budget or a $700 billion economy.

.The bombing of North Vietnam did not officially begin until February 1966. As is indicated below, the number of American troops in Vietnam increased by 800 per cent during 1965:

Date Number of troops

December 31, 1964 23,000

June 30, 1965 103,000

December 31, 1965 184,000

June 30, 1966 322,000

December 31, 1966 455,000

.For example, Secretary of Defense McNamara announced in 1965 that “We have stopped losing the war.” At the time, President Johnson estimated that the military budg et for the fiscal year ending in 1965 would be lower than that of the previous year. As late as 1966, American fiscal policy was being formulated on the assumption that the war would be over by June 1967. In March of that year, therefore, Secretary of the Treasury Fowler publicly expressed the hope that “no one will base his economic decisions on the purely speculative assumption that our Vietnam needs will exceed current expectations.” The cost of the war in the fiscal year ending in 1967, however, exceeded the Government’s estimates by almost 100 per cent.

. The Defense Production Act has recently been amended. Defense Production Act Amendments of 1975, Pub.L. No. 94-152. 89 Stat. 810 (1975). Although the D.P.A. was changed in some significant respects, those ■ provisions directly relevant to this appeal were unaffected. See S.Rep. No. 353, 94th Cong., 1st Sess. (1975). H.R.Conf.Rep. No. 673, 94th Cong., 1st Sess. (1975). Excerpts of the legislative' history of the 1975 amendments are provided at 1975 U.S.Code Cong. & Admin.News p. 1588.

. In full, section 101(a) reads as follows:

The President is authorized (1) to require that performance under contracts or orders (other than contracts of employment) which he deems necessary or appropriate to promote the national defense shall take priority over performance under any other contract or order, and, for the purpose of assuring such priority, to require acceptance and performance of such contracts or orders in preference to other contracts or orders by any person he finds to be capable of their performance, and (2) to allocate materials and facilities in such manner, upon such conditions, and to such extent as he shall deem necessary or appropriate to promote the national defense.

50 App.U.S.C. § 2071.

The broad latitude given the President in this area can also be inferred from the declaration of policy found in section²:

The United States is determined to develop and maintain . . military and economic strength . . .. Under present circumstances, this task requires diversion of certain materials and facilities from civilian use to military and related purposes. It requires expansion of productive facilities beyond the levels needed to meet the civilian demand. In order that this diversion and expansion may proceed at once, and that the national economy may be maintained with the maximum effectiveness and the least hardship, normal civilian production and purchases must be curtailed and redirected.

It is the objective of this Act ... to provide the President with authority to accomplish these adjustments in the operation of the economy. It is the intention of the Congress that the President shall use the powers conferred by this Act ... to promote the national defense, by meeting, promptly and effectively, the requirements of military programs in support of our national security and foreign policy objectives, and by preventing undue strains and dislocations upon wages, prices, and production or distribution of materials for civilian use, within the framework as far as practicable, of the American system of competitive enterprise.

50 App.U.S.C. § 2062.

. In relevant part, section 704 provides:

The President may make such rules, regulations, and orders as he deems necessary or appropriate to carry out the provisions of this Act . . .. Any regulation or order under this Act . . may be established in such form and manner, may contain such classifications and differentiations, and may provide for such adjustments and reasonable exceptions as in the judgment of the President are necessary or proper to effectuate the purposes of this Act . . ., or to prevent circumvention or evasion, or to facilitate enforcement of this Act . . ., or any rule, regulation, or order issued under this Act

50 App.U.S.C. § 2154.

Section 103 imposes criminal sanctions for the violation of “any rule, regulation or order” issued under the Defense Production Act. 50 App.U.S.C. § 2073.

. Under section 703,

“the President may delegate any power or authority conferred upon him by this Act to any officer or agency of the Government, including any new agency or agencies (and the President is authorized to create such new agencies . . . as he deems necessary), and he may authorize such redelegations by that officer or agency as the President may deem appropriate.”

50 App.U.S.C. § 2153.

. Exec. Order No. 10480, 18 Fed.Reg. 4939 (1953).

. 18 Fed.Reg. 6503 (1953).

. Reg.², Basic Rules of the Priorities System, 18 Fed.Reg. 1684 (1953), as adopted by the B.D.S.A., 18 Fed.Reg. 6503 (1953). Although Regulation² was initially promulgated under the National Production Authority (NPA), the B.D.S.A.’s predecessor in the Commerce Department, Exec. Order No. 10161, 15 Fed.Reg. 6105 (1950), the provision was specifically continued in force when B.D.S.A. was created. 18 Fed.Reg. 6503, 6505 (1953).

. See Reg.², § 16, 18 Fed.Reg. 1684 (1953).

. Reg.², § 3(a)(2), 18 Fed.Reg. 1684 (1953).

. Reg.², §§ 3(b)(1) & (2), 18 Fed.Reg. 1684 (1953). Reg.² also provides that all DO-rated orders have equal preferential status. Reg.², § 3(b)(2).

. Between 1965 and 1966, the number of Defense Department requests for DX ratings increased from 1,172 to⁵,212.

. William N. Lawrence, the official in charge of the priorities office within the Office of Emergency Planning during the period at issue, testified that the aircraft manufacturers “voluntarily” agreed to the Defense Department’s proposal. An executive of Pratt & Whitney, the sole suppliers of jet engines to Douglas, testified that the aircraft industry acceded to a system of “voluntary compliance” in order “to prevent the removal of the [“DO”] priority rating from commercial [production].” Even representatives of the airlines themselves acknowledged as early as July 1966 that “there are informal means by which the military orders can be given priority at the factory.” “Staff Study” at 6, attached to letter to William N. Lawrence from F. E. Brown, Director of Supplies, Air Transport Association of America, July 14, 1966.

. The evidence establishes that the Bryant letter was approving, after the fact, a policy which the B.D.S.A. had been pursuing for some time. See note 80 infra. This letter was excluded from evidence because the trial judge considered Mr. Bryant’s “understanding” that a voluntary agreement had taken place to be hearsay. Tr. 2362-2372. It should be noted, however, that the District Court relied on this same letter in his denial of McDonnell’s motion for a new trial. District Court’s Order Granting in Part Defendant’s Motion for Judgment Notwithstanding the Verdict and Denying Defendant’s Motion for a New Trial, March 26, 1974. Regardless of whether the letter would otherwise be excludable as hearsay, see Fed.R. Evid., Rule 803(8), 28 U.S.C., it should have been admitted because it does establish that the official to whom the President had delegated all his powers under the D.P.A. approved of the informal “jawboning” at issue in this case.

In the 1966 annual report of the Department of Commerce to the Joint Committee on Defense Production, the congressional group charged with overseeing the D.P.A., 50 App.U. S.C. § 2162, the Department noted that “many successful actions taken by BDSA to expedite defense deliveries were accomplished without formal action.” This report was included in the Sixteenth Annual Report of the Activities of the Joint Committee on Defense Production, H.R.Rep. No. 1, 90th Cong., 1st Sess. 174 (1967). The District Court excluded the above-quoted sentence from evidence, Tr. 7446. This statement is clearly admissible as being part of a public agency’s report “setting forth . the activities of the office or agency.” Fed.R. Evid., Rule 803(8), 28 U.S.C. . The statement, along with the colloquy in which it appeared, was stricken by the District Court:

Q. Let me ask you this, sir. As a result of your receipt of the letters that you have just been shown, was there any different policy followed by your office as priorities officer and executive secretary of the Business and Defense Services Administration regarding DOA1 ratings of military planes and commercial planes in handling special assistance cases?

You may answer. Those letters more or less reflected existing policy.

Q. Now, Mr. Zepp, you said on the last question, sir, that — I believe you said that the effect of these letters was already existing Government policy, am I correct in that? Or you put it in your words.

A. Reaffirmation of existing policy.

Q. Reaffirmation of existing policy.

Mr. Zepp, my question to you is: When you had, or were there instances where you had a situation where commercial aircraft, DO rated orders, and military aircraft DO rated orders conflicted, what policy, sir, had been followed by you preexisting these letters?

A. Yes. The policy was that the military came first. This is a reflection of the Defense Production Act and the way the President’s powers were to be used by our office.

Q. Is that the policy you, as top priorities officer in the Department of Commerce, exercised?

A. It was. I am referring to Section 101 of the Act.

The District Court also struck the following exchange during Eastern’s cross-examination of Mr. Zepp.

Q. Can you tell this jury, where you have a situation where a commercial DO rated order and a military order — DO order— were received by a supplier relating to the same identical order, engines, or whatever, how would it be handled by the supplier?

A. He would have to work on the military order first.

The trial judge struck this testimony pursuant to his holding that only delays caused by formal ratings are excusable. Since we hold this to be an erroneous interpretation of the contracts and the Defense Production Act, all evidence of this sort should be presented for the jury’s consideration upon the retrial of this case.

. William N. Lawrence, the official charged with administering the O.E.P.’s priorities program, gave the following testimony:

Q. And when you say “jawboning,” sir, what do you refer to?

A. I refer there to where a telephone call is uséd rather than a formal directive to expedite delivery of a particular item from a particular plant.

Q. And you say the telephone call is used, the jawboning, in a sense, if it is not done a priority would be directed?

A. A directive would be issued.

In a letter dated July 12, 1966, Major General C. W. Cecil of the Air Force wrote to Douglas urging compliance with the priorities policy of the Government, noting that “[a]s you are undoubtedly aware, production under [military] contracts assigned a priority rating will take precedence over unrated or civilian orders.” The trial judge again erroneously refused to admit this evidence of informal government pressures.

. The nature and extent of these demands are revealed in a letter from Lieutenant General Gerrity of the Air Force to Pratt & Whitney dated December 23, 1966. General Gerrity reaffirmed his position that

the Air Force is not “standing 'in line” to receive . . . engines on any schedule short of our established requirements. . [W]hile I’m completely sympathetic to your overall problem of attaining increased capacity to meet both commercial and military schedules, I must re-emphasize that if you cannot meet both, then the priority should go to our military engines.

This evidence was stricken by the trial judge. Eastern contends that Gerrity’s evidence was properly excluded because the General could not himself issue a “DX” rating, and therefore could not have overridden the commercial, “DO”-rated orders. This is not entirely clear, however. Gerrity was Air Force Deputy Chief of Staff, Systems and Logistics, as well as Administrative Head of the Joint Aeronautical Materials Activity Command. The Commerce Department’s report on the activities of the B.D.S.A. during 1966 includes as an exhibit a Defense Department presentation given throughout the nation to firms having defense contracts. The opening paragraph of this presentation states that each of the armed services had the right to apply “DX” priority to their orders:

[T]he Business and Defense Services Administration has delegated to the Secretary of Defense and the Chairman of the Atomic Energy Commission, three main priorities and allocations authorities; namely, to rate their contracts and orders with DX or DO; to assign the right to apply the DX or DO ratings for capital equipment; and to allocate steel, copper, aluminum and nickel alloys for their A products. The Secretary of Defense has delegated these powers to the Assistant Secretary of Defense for Installations and Logistics. These powers, in turn, have been delegated ... . to the Army, Navy, Air Force. . . .

H.R.Rep. No. 1, 90th Cong., 1st Sess., 192-93 (1967).

This description of the delegation of authority under the D.P.A. is supported by testimony of William N. Lawrence. Moreover, Major General Cecil of the Air Force wrote to Douglas on July 12, 1966, that both “DO” and “DX” ratings were “assigned by the procuring authority [i. e. the Air Force].”

Mr. Zepp’s testimony, though, would seem to indicate that only the B.D.S.A. had authority to issue a “DX” rating. However, even assuming that General Gerrity did not himself have authority to issue the required rating, there is no doubt that a request from him to the B.D.S.A. would have achieved the same result. As Zepp testified, the B.D.S.A.’s procedure merely determined whether or not the Defense Department’s claim of delay was accurate. Because Zepp and the B.D.S.A. subscribed to the “military first” policy, it would have been futile for affected firms to resist the informal jawboning. Consequently, the Gerrity letter should have been admitted as evidence of the government pressures placed on defense suppliers to grant military requirements over other “DO”-rated orders.

. The District Court’s jury instructions on this issue were as follows:

I charge you that in order for McDonnell Douglas to establish that delivery delay was due to governmental priorities, allocation regulations or orders affecting ’materials, equipment, facilities or completed aircraft, McDonnell Douglas must show by the greater weight of the evidence:

1. That' a government order had been actually assigned a DX rating by the Business and Defense Services Administration of the Department of Commerce or other appropriate government agency, or that a supplier had been issued a directive by the Business and Defense Services Administration to allocate a portion of its production to a government order rather than a commercial order, and

2. That a recipient actually complied with the DX rating or directive, and

3.That compliance with the DX rating or directive proximately caused delivery delays to Eastern airplanes which are the subject matter of this suit.

A voluntary preference given to a government order by McDonnell Douglas or one of McDonnell Douglas’ subcontractors does not excuse any failure on defendant’s part to deliver the aircraft on time.

I charge you that the only acts of government which you may consider as excusing factors under the excusable delay clause of the contracts are acts taken by government officials in the lawful exercise of their authority, including the acts of issuing DX ratings by the government agencies and directives by the Business and Defense Services Administration.

. The California Department of Employment Research, for example, reported that

The coincidence of the upsurge in the demand for aircraft production workers and the accelerated hiring among firms affected by developments in Vietnam, caused a rapid spread of recruitment problems involving a wide variety of occupations. Because of the prolonged slump in aircraft production, the supply of experienced aircraft workers had long since been diverted into other industry occupations and areas. The renewed demand quickly exhausted the supply of qualified machine shop metal trades and related workers. As the supply diminished, hiring specifications eased until the point was reached where there was mass hiring of trainees. California Department of Employment Research and Statistics, Los Angeles Metropolitan Area, Economic Background of Los Angeles County 21 (April, 1967).

. The President and Chairman of Menasco, one of Douglas’ landing gear suppliers, testified that his firm had to “beat the bushes” for skilled workers because of “the added volume that was unanticipated and was imposed by the Southeast Asian operation.”

. Menasco, for example, was four months late in its deliveries of landing gear during 1966. As Eastern’s counsel noted at oral argument, McDonnell presented claims to Menasco and Cleveland Pneumatic and, in fact, has received an out-of-court settlement from Cleveland Pneumatic.

. There is evidence that Douglas had to reschedule its production of DC-8 and DC-9 aircraft as a result of engine delivery delays. During this period, Pratt & Whitney expressly admitted to “delaying Douglas.”

Although Eastern’s counsel conceded in oral argument that Pratt & Whitney was late in delivering engines, he pointed to testimony of Arthur E. Smith, an executive of Pratt & Whitney, indicating that “by extraordinary effort,” Douglas could get the engines installed out of their normal sequence on the assembly line without delaying delivery of the airplane. However, the record reveals that when Smith was asked directly whether the delivery of a Douglas plane to a customer was delayed by a lack of an engine, he replied:

What I am saying is that airplanes that were ready to be delivered were not delayed by lack of an engine. I think that is the proper context of what I am trying to get across.

A jury could infer from this testimony that, while aircraft already on the assembly line were not delayed by Pratt & Whitney, the manufacturing process could have been hindered at some earlier point by the engine delays.

.Interestingly enough, Boeing announced in May of 1966 that the delivery of its 707 and 727 aircraft would be delayed for periods of thirty days until as late as 1969. The anticipated delays were attributed to “the increasing military requirements for [Pratt & Whitney] engines and engine parts.” As the Chairman and President of Menasco testified, the entire aviation industry appeared to be experiencing similar problems:

I don’t know of anybody in the aircraft manufacturing business — starting out with machine tool builders and forging houses, to manufacturers — who were not impacted in about the same way and about the same degree.

. In relevant part, section 2-615 reads as follows:

Excuse by Failure of Presupposed Conditions

Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance:

(a) Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach

of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

. Ejusdem generis, by its very terms, applies only where the general terms of an exculpatory clause follow a more specific listing of excused events. Here, of course, the general terms of the excusable delay clause precede the more specific provisions. Most decisions limiting the application of similar clauses can be distinguished on this basis as well. See, e. g., Excelsior Motor Mfg. & Supply Co. v. Sound Equipment, Inc., 7 Cir., 1934, 73 F. 2d 725, 728.

It is true, however, that, in one case, the United States Court of Claims limited an almost identical exculpatory provision to the specifically listed events despite words expressly stating that the general provision included but was not restricted to those events. Austin Co. v. United States, Ct.Cl., 1963, 314 F. 2d 518, 520, 161 Ct.Cl. 76, cert. denied, 375 U.S. 830, 84 S.Ct. 75, 11 L.Ed.2d 62. In our view, this decision merits the criticism it has received from Professor Corbin: The court interpreted the . . . “exculpatory clause” as not including the inherent “impossibility” as alleged by the plaintiff, since it was not ejusdem generis with the causes specifically listed. It does not comment on the words “but are not restricted to,” words that in the opinion of this treatise prevent the ejusdem generis rule from being very clearly applicable.

. McDonnell Douglas argues that Eastern is precluded from maintaining this action because the contracts all lapsed under section 2-616, the U.C.C. provision which outlines the procedures to be taken when a seller justifies a breach under section 2-615. Section 2-616 reads as follows:

(1)Where the buyer receives notification of a material or indefinite delay or an allocation justified under the preceding section he may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs the value of the whole contract under the provisions of this Article relating to breach of installment contracts (Section 2-612), then also as to the whole,

(a) terminate and thereby discharge any unexecuted portion of the contract; or

(b) modify the contract by agreeing to take his available quota in substitution.

(2) If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding thirty days the contract lapses with respect to any deliveries affected.

(3) The provisions of this section may not be negated by agreement except in so far as the seller has assumed a greater obligation under the preceding section.

While it is true that Eastern failed to pursue the options available to it under section 2-616, both parties during the years 1966-1969 continued to perform as though the agreements remained in force without ever making reference to the Code procedures. Therefore, we cannot accept McDonnell’s belated assertion that all the contracts were automatically terminated under section 2-616(2). A seller cannot employ this thirty-day termination provision to deprive an unwary buyer of his U.C.C. rights and remedies. Such an approach would frustrate section 2-616’s purpose of protecting the buyer confronted with a claim of excuse under section 2-615. See Project, A Comparison of California Sales Law and Article Two of the Uniform Commercial Code (Part II), 11 U.C.L. A.L.Rev. 78, 104 (1963).

.McDonnell contends further that the District Court erred in instructing the jury that it had the burden of proving excusable delay. The burden of proof in diversity cases is a substantive question which is controlled by state law. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 96 (1939). As we have seen, the contracts provide that performance is to be determined according to California law. In California, a promisor seeking to be excused from performance has the burden of proving all the elements of his affirmative defense. See Ocean Air Tradeways, Inc. v. Arkay Realty Corp., 9 Cir., 1973, 480 F. 2d 1112, 1117; Lloyd v. Murphy, 1944, 25 Cal.2d 48, 54, 153 P. 2d 47, 50-51. The excusable delay clause, moreover, cannot be viewed as shifting this burden to Eastern. See 3A A. Corbin, Contracts § 642 at 73 (1960). Consequently, the trial judge’s burden of proof instructions were correct.

We do note, however, that the trial judge may have misled the jury by instructing it that McDonnell’s defense would fail if the jury could not determine “what number of days of delay . . . was proximately caused by excusable factors.” The court could more properly have informed the jury that McDonnell had to prove that a certain proportion of the delays were due to circumstances coming within the excusable delay clause without intimating that a particular day of delay had to be attributed to a specific excusing event.

.The trial court’s instructions on this issue were as follows:

In seeking to excuse its delayed performance on the theory that the delays were due to causes beyond its control and not occasioned by its fault or negligence, the defendant has the burden of proving that any excusing event or occurrence upon which it relies was not reasonably foreseeable at the time the contract was entered into.

.Professor Hawkland’s discussion of Professor Llewellyn’s purposes in preparing the forerunner to section 2-615 and of the legislative history of this provision before the American Law Institute provides some insight into this question. See Hawkland, supra, at 77-79.

. Professor Hawkland suggests that Comment 8

would appear to have reference to the common law limitations on the enforceability of exemption clauses, namely that the excusing contingencies must be stated with particularity and not in general language, and that their occurrence actually must have prevented or delayed the seller’s performance in spite of his reasonable efforts to perform.

Hawkland, supra, at 79.

. As Comment 8 indicates, however, there is a point beyond which any such agreement may not go. Professor Hawkland suggests that the “minimum” established by section 2-615 includes the duty of the seller to allocate deliveries among his customers and to notify the buyer of any delivery delay or nondelivery. Hawk-land, supra, at 79. One student commentator, though, appears to construe Comment 8 as limiting the degree to which a seller’s protections under section 2-615 can be narrowed. Note, UCC § 2-615: Sharp Inflationary Increases in Cost as Excuse from Performance of Contract, 50 Notre Dame Law. 297, 300-301 (1974). In any event, exemption provisions are limited by those sections of the Code prohibiting agreements which are “manifestly unreasonable” [§ 1-102(3)], in bad faith [§ 1-203], or unconscionable [§ 2-302]. See Transatlantic Financing Corp. v. United States, 1966, 124 U.S.App.D.C. 183, 363 F. 2d 312, 315 n. 3.

. Foreseeability may be a factor in determining whether the intervening event is caused by an allegedly negligent act of the promisor. Of course, the term has a completely different meaning and purpose in this context. See W. Prosser, Handbook of the Law of Torts, §§ 31, 43-44 (4th ed. 1971).

. McDonnell also argues that the trial judge erred in narrowing the excuses available as a result of its suppliers’ delays to those available to McDonnell directly. In McDonnell’s view, it should be exonerated for any delays caused by its subcontractors regardless of whether these delays were the subcontractors’ fault. This construction, however, would write out of the excusable delay clause the parenthetical expressly limiting excusable vendor-caused delays to those “due to causes similar to those within the scope of this clause.” For this phrase to have any meaning, it must be construed as limiting excusable vendor-caused delays to those beyond a vendor’s control and not due to his negligence.

. Note, The Defense Production Act: Choice as to Allocations, 51 CoIum.L.Rev. 350 (1951).

. Quoted in full at note 68 supra.

. Quoted at note 69 supra.

. See Note, The Defense Production Act: Choice as to Allocations, 51 CoIum.L.Rev. 350, 351 n. 6, 358 & n. 71 (1951).

. Eastern’s reliance on The Steel Seizure Case is therefore misplaced. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). In that case, the Supreme Court held that the Defense Production Act did not implicitly authorize the seizure of a plant as a means of preventing work-stoppages because, in 1947, the Congress had rejected an amendment to the labor laws which would have explicitly permitted such an action. Id at 586, 72 S.Ct. at 866, 96 L.Ed. at 1167. Consequently, the President’s seizure of the Youngstown mills was held invalid because:

The Defense Production Act affords no ground for the suggestion that the 1947 denial to the President of seizure powers has been impliedly repealed, and its legislative history contradicts such a suggestion.

Id. at 607, 72 S.Ct. at 895, 96 L.Ed. at 1177 (Frankfurter, J., concurring).

. See The Second War Powers Act ch. 199, § 301, 56 Stat. 177 (1942).

. Even if we were to conclude that the D.P.A. did not authorize informal priority efforts, McDonnell would be exonerated by a provision of the Act which exculpates any compliance with a government order regardless of whether it is later determined to be invalid. 50 App.U.S.C. § 2157. This provision is discussed in the following section of this opinion.

. Eastern also contends that, under the Administrative Procedure Act, it was entitled to rely upon its DO rating. Section³ of the Act provides, in part, that “a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.”⁵ U.S.C. § 552(a)(1). Even assuming that the Government’s informal method of obtaining priorities had to have been published, the A.P.A. is clearly not applicable to this case. The above-quoted provision is specifically limited to persons not having “actual and timely notice” of the unpublished information. See Kessler v. F. C. C., 1963, 117 U.S.App.D.C. 130, 326 F. 2d 673, 690; United States v. Aarons,² Cir., 1962, 310 F. 2d 341, 347-48. As we have seen, Eastern by its own admission, was well aware of the Government’s policy. See notes 57-59 supra.

. Failure to perform a contractual obligation may be excused even though an attempt to do so may only have appeared to be futile. For example, one court has held that even illegal acts of government could serve as an excuse for nonperformance. J. & G. Lippman v. Rice Millers’ Distrib. Co., 1924, 156 La. 471, 100 So. 685, 687. A contrary view, however, is evident in Roxford Knitting Co. v. Moore & Tierney, Inc., supra:

[I]t is not decisive to ascertain what the plaintiff or the [government employee] thought was being done, or intended to do. The real question is as to what in fact was done. In order that civil contracts should be postponed by “orders” subsequently placed by the government, it is necessary that those orders should be placed in accordance with the commandeering act, if the act indicates the method to be pursued. If officials of the War and Navy Departments entertain erroneous views of their power and of the construction to be placed upon an act of Congress, their decision cannot make it the duty of the courts to perpetuate the error, and override the statute, and deprive individuals of their contract rights.

265 F. at 190 (dictum).

As will be discussed below, this issue has been resolved by section 707 of the D.P.A., 50 App.U.S.C. § 2157, which excuses all breaches resulting from compliance with a government order whether or not it is subsequently determined to be invalid. We note further, though, that the legality of a government act, while relevant, should not be the only factor considered in impracticability cases. Under section 2-616 of the Code, a good faith, commercially reasonable belief in the validity of a governmental interference with a contract would justify exoneration of the promisor. See Uniform Commercial Code § 2-615, Comment 10; cf. The Kronprinzessin Cecilie, 244 U.S. 12, 23-24, 37 S.Ct. 490, 492, 61 L.Ed. 960 (1917). As one court has demonstrated, in an analogous case, all the circumstances surrounding a breach which is claimed to be excused because of a supervening event should be examined to determine whether the promisor acted reasonably in failing to perform. Paper Makers Importing Co. v. City of Milwaukee, E.D.Wis., 1958, 165 F.Supp. 491.

. The Second War Powers Act, ch. 199, § 301, 56 Stat. 177, 180 (1942), provided in relevant part:

No person shall be held liable for damages or penalties for any default under any contract or order which shall result directly or indirectly from compliance with this subsection (a) or any rule, regulation or order issued thereunder, notwithstanding that any such rule, regulation or order shall thereafter be declared by judicial or other competent authority to be invalid.

. Eastern’s construction of the term “order” is at odds with the B.D.S.A.’s own published regulations. Section 22 of Regulation² states that 18 Fed.Reg. 1684 (1953) (emphasis supplied). Certainly a government demand need not be in the form of a priority rating in order to constitute a “direction” or an “instruction.”

. The primary witnesses for each side had each presented similarly contrasting views in a case involving the damages suffered by Trans World Airlines because of a failure to deliver a number of aircraft. Trans World Airlines, Inc. v. Hughes, S.D.N.Y., 1969, 308 F.Supp. 679, aff’d,² Cir., 1971, 449 F. 2d 51; rev’d on other grounds, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973).

. Mr. Simat estimated that, as a result of late deliveries, Eastern suffered a loss in operating profit of at most $0.3 million. This loss, in Mr. Simat’s view, was more than offset by the added costs of capital Eastern would have incurred in order to obtain and pay for the Douglas aircraft. These added costs, which were not considered by Mr. Wemple, were estimated as being over $1.6 million.

. McDonnell’s primary contention is that there is no basis in the evidence for Mr. Wem-ple’s assumption that the³ per cent increase in capacity which would have resulted from timely deliveries would have been matched by an equivalent increase in passenger traffic. However, McDonnell also argues that Wemple’s use of “system wide average passenger yields” overstated the gross revenues which Eastern would have received because the airline’s yields on Douglas jets were substantially lower than the system average. McDonnell contends further that Wemple assigned additional passenger traffic and revenue to Eastern’s shuttle services when, in fact, all passengers desiring to use this service were being accommodated. Another Wemple assumption challenged by McDonnell is that 20 per cent of Eastern’s costs — $164.5 million — would not have increased at all even if the Douglas planes had been delivered on time. McDonnell also claims that it was speculative for Wemple to assume that Eastern would have derived extra cargo income on a percentage basis equivalent to the assumed increase in passengers. Finally McDonnell attacks Wemple’s failure to deduct from Eastern’s estimated lost profits the cost of financing those aircraft which were purchased rather than leased.

.Both Terrell, supra, and Greene were actions brought under the Sherman Act. The proof of damages in private antitrust suits is significantly less arduous than is usually the case in other actions. See Greene v. General Foods Corp., supra, 517 F. 2d at 662. Therefore, our reliance on Terrell and Greene should not be taken as indicating that in this case, Eastern must not be held to the traditional rule against speculative or conjectural estimates of damages in contract actions. See Center Chemical Co. v. Avril, Inc.,⁵ Cir., 1968, 392 F. 2d 289, 291.

. Frequently, this may be possible only by means of a curative instruction given to the jury after the expert has testified.

. McDonnell estimates that, had the aircraft been delivered as originally planned, Eastern would have borrowed $113 million at the time of delivery for the purchase. In Trans World Airlines, supra, both the District Court and the Second Circuit specifically approved of deducting interest costs from estimates of loss profits due to delivery delay. Trans World Airlines v. Hughes, supra, 308 F.Supp. at 694, aff’d, 449 F. 2d at 79.