Fernandez v. Golodetz
| Decision Date | 10 April 1945 |
| Docket Number | No. 235.,235. |
| Citation | 148 F.2d 625 |
| Parties | ALMACENES FERNANDEZ, S. A., v. GOLODETZ et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Lundgren, Bartels & Lincoln, of New York City, for plaintiff-appellant.
H. Russell Winokur, of New York City, for defendants-appellees.
Before EVANS and CHASE, Circuit Judges, and HINCKS, District Judge.
This suit was brought in the District Court for the Southern District of New York by a Mexican corporation against the members of a partnership, of whom some were residents of New York, other residents of England and one a resident of Palestine, who were doing business in New York under the firm name and style of M. Golodetz & Company. Also named as defendants were two common carriers — Texas Transport & Terminal Co., Inc., a New York corporation, and Cia Mexicana de Navegacion S. de R. L. y C. V., a Mexican corporation which maintains an office in the City of New York — and Federal Insurance Company, a New Jersey corporation which is in business in New York.
The complaint alleged that the defendants doing business as M. Golodetz & Company sold the plaintiff 1443 drums of caustic soda to be shipped from New York to Vera Cruz, Mexico, at $6.75 per hundred pounds including war risk insurance and consular fees, payment to be made by a letter of credit issued by the Manufacturers Trust Company as agent for the plaintiff against presentation of sight drafts, commercial invoice, ocean bills of lading, certificates of insurance and consular invoices. There followed allegations that Golodetz & Co. delivered to the carriers 1443 drums of soda which were dented, rusted and unfit for shipment and that it induced the carriers to issue bills of lading in which the drums were falsely described as having been received "in apparent good order and condition;" that Golodetz & Co. induced the defendant Federal Insurance Company to issue certificates of insurance in which the damaged condition of the drums was not disclosed but instead they were described as being in accordance with the bills of lading; and that Golodetz & Co. presented to the Manufacturers Trust Company sight drafts and invoices totaling $49,424.86, together with ocean bills of lading, consular invoices and certificates of insurance covering the sale.
The complaint further alleged that all the defendants represented to the bank that the drums were in good and merchantable condition, packed in unrusted and undented drums fit for shipment; that the defendants other than the insurance company knew that these representations were false and upon information and belief that the insurer ought to have known it; that the bank paid the drafts believing that the bills of lading were clean and true; that thereafter 1439 of the drums arrived at Vera Cruz and the plaintiff was induced to receive them and to transport them to Mexico City, being compelled in so doing to pay import duties and other charges in excess of $8000; that after the drums arrived in Mexico City the sellers and carriers again represented to the plaintiff that the drums had been undented and unrusted when shipped from New York; that they knew these representations were false but made them for the purpose of inducing the plaintiff to refrain from enforcing its claim against them and to retain the soda in order to permit the insurer to make a survey for the payment by it of all claims for damages in connection with the sale and shipment; and that the plaintiff relied upon these representations and accordingly retained the soda, permitted the survey of damages, and limited its claim to the insurer.
Finally, the complaint alleged that the misrepresentations and the damaged condition of the drums prevented the plaintiff from selling the 1443 drums of soda to its customer at a profit and compelled it to sell at a loss at public auction the 1439 drums which it had received, and it demanded damages of $45,000 with interest.
A second cause of action for breach of warranty by Golodetz & Co. was alleged, and so was a third cause of action based on the issuance by Federal Insurance Company of certificates of insurance covering the shipment of 1443 drums of caustic soda from New York to Mexico City via Vera Cruz and payable to Golodetz & Co. in case of loss; the endorsement of these certificates in blank by Golodetz & Co. and their delivery to the plaintiff for a valuable consideration; the total loss of four drums of soda and the damaging and partial destruction of the rest through causes covered by the policy; the insurance company's subsequent disavowal of liability for the plaintiff's loss; and its refusal to pay any part of it.
The defendant Cia Mexicana de Navegacion S. de R. L. y C. V. was not served with process and did not appear. Upon motion the first and second causes of action were dismissed as against Federal Insurance Company, the dismissal of the second being with the plaintiff's consent. Almacenes Fernandez, S. A. v. Golodetz, D. C., 55 F.Supp. 1003.
In its answer to the first cause of action Golodetz & Co. admitted selling the caustic soda to the plaintiff and having the shipment insured, and it "admitted" that the soda was "merchantable and of the kind and quality specified in the contract of sale and that it was packed in drums fit, suitable, and adequate in all respects for shipment to Vera Cruz." Otherwise the allegations of the complaint were denied generally, as were those of the second and third causes of action.
For a separate defense and by way of counterclaim this defendant alleged that the sales contracts contained an arbitration agreement as follows: It alleged that it had always been willing to arbitrate any claims arising out of the contracts and was still willing to do so, but that the plaintiff had broken the agreement to arbitrate, had brought this suit and was in default. As a separate defense to the cause of action for breach of warranty this defendant alleged failure of the plaintiff to give notice of the breach within a reasonable time as is required by § 130 of the New York Personal Property Law, Consol.Laws, c. 41. It demanded that the action be stayed; the plaintiff be directed to arbitrate all its claims; and that the complaint be dismissed with costs as to the defendant Golodetz & Co.
The plaintiff admitted its failure to arbitrate its claims against Golodetz & Co. but it denied having any knowledge or information sufficient to form a belief as to whether the sales contracts contained the alleged agreement to arbitrate or whether Golodetz & Co. was then ready or had ever been ready to arbitrate. It also asserted...
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...arbitration agreement." Dillon v. BMO Harris Bank, N.A. , 173 F. Supp. 3d 258, 263 (M.D. N.C. 2016) (citing Almacenes Fernandez, S.A. v. Golodetz , 148 F.2d 625, 628 (2d Cir. 1945) ).It is unclear what daylight exists, if any, between the two approaches. Both require the party seeking arbit......
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...trial under § 4 must show the existence of a genuine issue involving the making of the arbitration agreement. Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625, 628 (2d Cir.1945). See also Manning v. Energy Conversion Devices, Inc., 833 F.2d 1096, 1103 (2d Cir.1987); In re Matter of Arbit......
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