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Atlas Trading Corp. v. S. H. Grossman Inc.

decided.: July 29, 1948.


Author: O'connell

Before GOODRICH, McLAUGHLIN and O'CONNELL, Circuit Judges.

O'CONNELL, Circuit Judge.

The complaint of plaintiff, a New York corporation whose business included the sale of motor vehicles for export, asserts that defendant, a New Jersey corporation selling motor vehicles, committed a breach of contract. From a judgment entered on a jury verdict awarding plaintiff the sum of $9500, defendant has taken the instant appeal.

A somewhat detailed chronological recital of the principal events leading to the filing of the complaint is important for an understanding of the issues which defendant here raises.

(1) On February 28, 1942, the War Production Board promulgated General Conservation Order M-100. Neither litigant challenges the validity or applicability of the order, pertinent parts of which (a) forbade the transfer of any new commercial motor vehicle, except to a person holding a Government Exemption Permit (hereinafter called "Permit"), and (b) regardless of any inconsistent arrangement, required that, when a Permit was presented to a sales agency having in stock a vehicle of the type specified, the sales agency was to transfer such vehicle to the person named in the Permit.

(2) In the summer of 1942, plaintiff purchased from Dexter Motors, Inc. (hereinafter called "Dexter"), a sales organization, ten Dodge WH-47 two-ton trucks which Dexter had in stock. Plaintiff supplied the Permits.

(3) In August, 1942, plaintiff approached Dexter for twenty more trucks of similar type. Having only eight such trucks in stock, Dexter contacted defendant. The Dexter representative avers, and defendant denies, that defendant at that time was told that plaintiff was selling the trucks to the Free French Delegation. Defendant did supply at least twelve of the trucks which plaintiff wanted. Defendant paid Dexter for the part which Dexter played in the transaction. Plaintiff again furnished the Permits.

(4) On September 30, 1942, pursuant to oral negotiations, Dexter and defendant each sent plaintiff a letter. The Dexter letter stated in part, "* * * we are offering you the following 32 Dodge WH47 Trucks firm until next Tuesday, Oct. 6th." The letter of defendant, indicating that the information it contained was submitted in connection with this transaction, listed the serial and motor numbers of thirty-one such trucks, and reminded plaintiff that a Permit was a prerequisite to release of the trucks.

(5) On October 6, 1942, plaintiff sent Dexter a letter in which, "subject only to receipt of the necessary releases from the U.S. Government we are ordering firm as per your letter to us under date of September 30th, 1942" the thirty-two trucks at the prices quoted in the Dexter September 30 letter. This October 6 letter added that a letter of credit would be established as soon as the Permits were received, and that plaintiff was to have the right to substitute other tire sizes "if our clients so require us." The letter closed with the request that, on the duplicate, Dexter sign acceptance and defendant "countersign." Dexter and defendant did sign the duplicate.

(6) On October 27, 1942, defendant sent plaintiff a letter, which in part reads as follows: "This letter cancels and supersedes our letter to you dated September 30th with reference to these same units. In accordance with our conversation of today, we are listing below the serial and motor numbers of these units * * *." All twenty-five trucks listed also appeared in the September 30 letter of defendant. The price per unit, $1530, was the same as that quoted in the September 30 letter of Dexter. Repeated verbatim in the October 27 letter was the paragraph reminding plaintiff of the necessity of a Permit.

(7) On November 17, 1942, the Free French Delegation requisitioned twenty-five such trucks and spare parts in the amount of 15% of the value of the trucks. The requisition included the comment that plaintiff was thought to be able to meet the delivery requirements.

(8) On November 18, 1942, defendant sent an invoice for the twenty trucks for which plaintiff had contracted in August.On the invoice, the printed words "Sold to" are followed by the typed words "Atlas Trading Corporation," and there is this notation: "Contact #D.A.-T.P.S.-15288."

(9) On November 25, 1942, the British Ministry of Supply Mission, through which the Free French were purchasing, advised plaintiff that a "proposal for quotation from the Treasury Procurement Division" of the United States "should be forthcoming very shortly." The Dexter representative testified that, in explanation of the delay, he showed this letter to defendant.

(10) On December 3, 1942, plaintiff sent defendant a letter enclosing "lists of spare parts for Contracts A and B." Defendant, inter alia, was asked to check the prices on these lists, with consideration being ...

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