ALMACENES FERNANDEZ, SA, v. Golodetz

• Decision Date: 06 April 1944
• Citation: 55 F. Supp. 1003
• Parties: ALMACENES FERNANDEZ, S. A., v. GOLODETZ et al.
• Court: U.S. District Court — Southern District of New York

55 F. Supp. 1003

ALMACENES FERNANDEZ, S. A., v. GOLODETZ et al.

District Court, S. D. New York.

April 6, 1944.

Lundgren, Bartels & Lincoln, of New York City (John R. Bartels, of New York City, of counsel), for plaintiff.

Bigham, Englar, Jones & Houston, of New York City (John M. Aherne, of New York City, of counsel), for defendant Federal Ins. Co.

BRIGHT, District Judge.

Defendant Federal Insurance Company moves to dismiss the complaint. Upon the argument plaintiff consented as to the second cause of action, and defendant agreed that the third cause of action sufficiently stated a claim against it.

By the first cause of action plaintiff, a Mexican corporation, seeks recovery against all of the defendants. By its allegations it appears that the defendants doing business as M. Golodetz & Co., sold to plaintiff 1443 drams of caustic soda to be shipped from New York to Vera Cruz, at a price, including war risk insurance, payment to be made through letter of credit from Manufacturers Trust Company as agent for plaintiff against presentation of sight draft, commercial invoice, ocean bills of lading, certificates of insurance, and consular invoice. The soda was delivered by Golodetz & Co. to the ocean carrying defendants in dented and rusted drums, unmerchantable and unfit for shipment, and they induced the carriers to issue false bills of lading acknowledging receipt of the soda "in apparent good order and condition."

The same defendants, before the sale, "induced" the Insurance Company to issue certificates of insurance covering the shipment, which did not disclose the damaged condition of the drums, but on the contrary the marks and numbers thereof were described to be in accordance with the bills of lading. Golodetz & Co. presented for payment to the Trust Company the sight drafts, invoices, ocean bills of lading, consular invoices and certificates of insurance, covering the shipment, and were paid $49,424.86.

It is then alleged that before the sale and that the presentation of the documents to the Trust Company, all of the defendants represented to plaintiff and the Trust Company, that the drums of soda were in good and merchantable condition, packed in unrusted and undented drums fit for shipment; that the representations were false and so known by the defendants other than the Insurance Company, and "should have been known" by the latter; were made to induce the payment mentioned and to induce plaintiff to receive the soda at Vera Cruz; that p...