other numerous functions and failure to transfer the base data as was initially promised and which formed a part of the understanding between the parties. This could have been due to the fact that this was Mr. Fleegal's first sale and his first attempt at training individuals in the use of the computer. Regardless of this, it is clear that no one was trained to perform the other functions and that Mr. Fleegal interfered with Plaintiff's employees to some extent with his religious discussions.
It was only after Defendant's attempts at performance were proving unsuccessful that Plaintiff demanded the computer be removed and training halted. This was reasonable under the circumstances as Defendant had advised Plaintiff numerous times that it had no financial or contractual obligation until they signed the third line of the Customer Software Acceptance form as an indication that they were completely satisfied and that the computer was fully operational. As noted above, the Defendant took the position that it had performed and that the employee of Plaintiff had been trained, which was simply not true. The Plaintiff remained receptive to having its employees trained, even after suit was filed, until it determined that the computer was neither economically feasible nor compatible with other bookkeeping requirements. In short, Plaintiff's refusal to permit training at the two times noted was reasonable under the circumstances and was not a material interference with Defendant's obligation. The argument that it was excused because base data was not supplied is similarly unpersuasive as Mrs. Slagle encountered no such problem, Mr. Fleegal never advised Mr. Andiorio of any uncooperative conduct of his employees, and because the letter of Mr. Meade of January 1975 never raised the problem of obtaining base data. Therefore, no excuse exists for Defendant's non-performance. See, Rainier v. Champion Container Co., 294 F.2d 96, 103 (3d Cir. 1961); Commonwealth v. Berger, 11 Pa.Cmwlth. 332, 342-43, 312 A.2d 100 (1973).
Defendant also argues that Plaintiff has failed to join an indispensable party, Equipment Funding, because complete relief cannot be accorded among those already parties. This argument is not valid for at least two reasons. First, complete relief can be accorded between the present parties. Defendant breached its contractual obligation and defendant has made no showing that Equipment Funding is an indispensable party. Second, the Defendant should be estopped from even raising the issue as it was only due to Defendant's misrepresentation that the lease was initially entered and the acceptance certificate signed.
The final argument of the Defendant is that Plaintiff failed to mitigate its damages. While Plaintiff was under an obligation to mitigate damages, it was Defendant's burden to prove that Plaintiff failed in this obligation. Carl Beasley Ford, Inc. v. Burroughs Corp., 361 F. Supp. 325, 335 (E.D.Pa.1973); Watsontown Brick Co. v. Hercules Powder Co., 265 F. Supp. 268 (M.D.Pa.1967). Defendant did not present any facts at trial that established a means of mitigation for the Plaintiff. Instead, the evidence showed that Plaintiff tried to return the computer and that after this was rejected by the Defendant, Plaintiff gave Defendant other opportunities to perform its contractual duties. The breach was material and the measure of damages is that which was caused by the breach. Carl Beasley Ford, Inc. v. Burroughs Corp., 361 F. Supp. 325 (E.D.Pa.1973). Under the circumstances of this case, the damages are the cost of the computer and paper products, the interest that Plaintiff was obligated to pay under the lease, and the expense incurred for an accountant on the request of Defendant's agent, totalling $ 15,659.04.
CONCLUSIONS OF LAW
1. A contractual relationship exists between Diversified and Olivetti, part of which is the oral agreement by Olivetti to perform the transfer of all base data and to train Plaintiff's employees.
2. The contractual duty owed to the Plaintiff was breached by the defendant as Defendant substantially failed to carry out its obligations of transferring the base data, of training Plaintiff's employees, and of making the computer system operational.
3. The injury suffered by the Plaintiff due to Defendant's breach is $ 15,659.04 and judgment will be entered for the Plaintiff in this amount.
An appropriate order will be entered.
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