Victor ODDO, d.b.a. Oddo's Food Center, Appellant, v. INTERSTATE BAKERIES, INC., Appellee, 271 F.2d 959

WOODROUGH, Circuit Judge. On consideration of Petition for Rehearing duly filed by appellee it is ordered that the opinion entered herein on November 19, 1959 be modified and supplemented as follows. The words “from month to month throughout the period involved” are deleted from the paragraph immediately following the quoted matter on page eight of the slip opinion [271 F.2d 421], The Court is not persuaded that the trial court made or intended to make any firm finding that there was sufficient circumstantial evidence to show that the fraudulent practice began in 1950 and this Court does not make such finding.

Our holding is that the question as to when such fraudulent practice started or prevailed should be and is left open for determination upon the new trial awarded.

The following words in the second paragraph on page 15 of the slip opinion [271 F.2d 425] are deleted: “ * * * and we are satisfied that the amount of plaintiff’s damages can be arrived at with reasonable certainty from records of the business and other evidence that remain available.” Both questions as to the fact of appel-lee’s liability and as to the amount of liability during the period of destroyed records are left open for determination on the new trial awarded. The petition for rehearing or reference to the Court en banc is denied.