that Marques never requested him to make any contribution toward his expenses for the trip. I find that there was no agreement between Marques and Jayess for reimbursement of or contribution to any part of Marques' expenses for his trip to Portugal, and therefore, Count II of Marques' amended cross-claim should be dismissed. (Count III of the amended cross-claim which sought the same recovery as Count II, was withdrawn at the pretrial conference.)
It is the contention of Marques that he had purchased from Jayess and sold to the plaintiffs for $ 44,010.00, 75 tons of light copper scrap upon the shipment of which the freight charge of $ 2,062.50 was payable by Marques and deductible from his price to the plaintiffs. He claims that he purchased the 75 metric tons at 24 3/4 cents per pound from Jayess, and that his profit amounted to $ 1,035.00.
Marques alleges and Jayess admits that on or about May 16, 1957, Jayess agreed to sell 75 metric tons of a certain grade of copper to Marques, trading as Lusitania Export Agency, for delivery to Martins Ferreira in Portugal at a cost of approximately $ 40,000; and that the freight charges upon the shipments thereof amounted to approximately $ 2,000. The evidence discloses, and I find, that payment of insurance and freight charges for shipments of the copper to Portugal had become the obligation of Marques under his agreement with Martins Ferreira. Both of these parties concede that two letters of credit in amounts aggregating $ 44,010 and payable to Marques were assigned by him to Jayess, which collected the proceeds thereof. Marques claims to be entitled to the difference between the avails of these letters of credit, less the freight charges and the cost of the copper, as his profit. Marques admits that he purchased the 75 tons of copper from Jayess for 24 3/4 cents per pound and sold it to Martins Ferreira for 27 cents per pound, including freight. He charges Jayess with having collected $ 44,010 on the letters of credit, charges himself with freight of $ 2,062.50, and claims as his profit the balance, $ 41,947.50, less Jayess' price to him for the copper. At 24 3/4 cents per pound, Marques testified that 75 metric tons of the copper cost him $ 40,912.50. Therefore, Marques says that he should recover $ 1,035.00 from Jayess upon the over-all transactions.
As Jayess correctly states, the first of the two letters of credit was for $ 9,000. under which the first 15 tons of copper were shipped to Portugal. For these 15 tons, Marques became indebted to Jayess in the amount of $ 8,206.82, including $ 79.94 for insurance. Jayess collected $ 9,079.94 on the first letter of credit and paid the entire difference of $ 873.12 to Marques; this Marques admits.
The second letter of credit for $ 35,010 related to the remaining 60 tons. At 24 3/4 cents per pound, Jayess claims Marques would owe it $ 32,624.45. Jayess collected, on the second letter of credit, a gross amount of $ 35,649.80; since Jayess was owed only $ 32,624.45 for the 60 tons, Marques was entitled to the balance of $ 3,025.35. But Jayess had expended, in connection with the 60 ton shipment, the following sums: (1) $ 2,958.08 for freight and insurance, which were Marques' obligations; (2) the $ 600 advance to Marques; (3) $ 32.54 for telephone calls; and (4) $ 1,573.89 in attorneys' fees for collecting the gross amount of the second letter of credit. These expenses total $ 5,164.51, and after crediting Marques with the $ 3,025.35 due him, there is a balance due Jayess from Marques of $ 2,139.16 (this is the amount claimed by Jayess at the pretrial conference on Count I of its counterclaim against Marques, thereby modifying the demand in the counterclaim for $ 3,213.07). With regard to the attorneys' fee for the collection of the second letter of credit, there is nothing in the record to support Jayess' claim for this expenditure from Marques because there is no evidence that he made the use of the attorneys necessary. Nevertheless, Marques did owe Jayess the $ 600 for advances made on any profit Marques might derive (see exhibits DJ-10A, B and C of June 16, 1961). The freight, insurance and telephone charges were also Marques' obligation, for which Jayess should be reimbursed. Consequently, Marques made no profit on the 60 ton transaction, and has become indebted to Jayess for a net amount of $ 565.27 (Jayess' total expenses of $ 3,590.62 excluding the attorneys' fee, less the credit of $ 3,025.35 due to Marques). Consequently, Count I of Marques' amended cross-claim for any balance due him from Jayess on the sale of the 75 tons to Ferreira must be dismissed, and judgment should be entered in favor of Jayess on Count I of its counterclaim, for $ 565.27.
Marques' amended cross-claim in Counts IV and V, alleges that he had a contract with Ferreira for 1,000 tons of copper and that Jayess' alleged misrepresentations as to the quality of the first 75 tons caused Ferreira to refuse to continue performance of the alleged contract, thus resulting in a loss to Marques of profits of $ 35,000 on the contract. The evidence before me shows that, although Ferreira and Marques talked of purchases in addition to the 75 tons actually shipped by Jayess to Ferreira, there was never any firm agreement between Marques and Ferreira, nor between Marques and Jayess, for the sale of any metal products other than the 75 tons of copper received by Ferreira. It follows that there was no contract for 1,000 tons of copper between Marques and Ferreira which could have been interfered with by Jayess, and Counts IV and V of Marques' amended cross-claim will be dismissed.
Jayess also counterclaims against Marques for $ 1,091.31 alleged to represent the amount of profits which Jayess lost by reason of failure of Marques to perform his agreement of August 8, 1957 to purchase from Jayess an additional 33 metric tons of light copper scrap at 23 1/2 cents per pound.
In his letter to Jayess of the stated date, Marques purports to confirm purchase of the material from Jayess at the stated price and advises Jayess that Marques holds Manufacturers' Trust Company letter of credit #373194 for $ 19,800 which he pledges to Jayess 'to cover payment against the sale.' In that letter Marques requested delivery before September 23, 1957. Manufacturers Trust Company had written Marques on July 25 and 29 respectively requesting permission to cancel the letter of credit or to agree to its amendment requiring 'official superintendence certificate stating closely goods have been examined bundle per bundle as being clean copper scrap.' On August 8, 1957, Manufacturers wrote a further letter to Marques requesting reply to its previous letters. By its letter of September 3, 1957, Jayess advised Marques, with reference to the latter's 'proposed' purchase mentioned in his letter of August 8, 1957, that it would only sell merchandise to Marques against an irrevocable letter of credit naming Jayess as beneficiary or duly assigned to it. In the same letter, Jayess rejected Marques' tendered pledge of the letter of credit 'notwithstanding the fact that the market value of Light Copper Scrap is now substantially less than 23 1/2 cents per lb. * * * (We) have now decided that we will sell to you only upon a confirmed, irrevocable Letter of Credit opened with a New York City Bank acceptable to us, which Letter of Credit must name us as beneficiary.' I find as a fact that no enforcible contract existed between Marques and Jayess with respect to the 33 metric tons of light copper scrap referred to in Count II of the Jayess' counterclaim against Marques; therefore, Marques should have judgment of dismissal of that Count.
In summary, all the counts of Marques' amended cross-claim are hereby dismissed. Count II of Jayess' counterclaim is also hereby dismissed, but judgment should be entered in favor of Jayess against Marques for $ 565.27 on Count I of its counterclaim.
The foregoing opinion shall constitute my findings of fact and conclusions of law. Let an order be entered in conformity with the views therein expressed.