Global Commerce Corp. v. Clark-Babbitt Industries, 272

• Decision Date: 29 April 1958
• Docket Number: No. 272,Docket 24794.,272
• Citation: 255 F.2d 105
• Parties: GLOBAL COMMERCE CORPORATION, S. A., Appellant, v. CLARK-BABBITT INDUSTRIES, Inc., Appellee.
• Court: U.S. Court of Appeals — Second Circuit

255 F.2d 105 (1958)

GLOBAL COMMERCE CORPORATION, S. A., Appellant, v. CLARK-BABBITT INDUSTRIES, Inc., Appellee.

No. 272, Docket 24794.

United States Court of Appeals Second Circuit.

Argued March 26, 1958.

Decided April 29, 1958.

Walter Herzfeld, New York City, Sereni & Herzfeld, New York City, Bernard J. Wald, New York City, of counsel, for appellant.

Francis A. Brick, Jr., New York City, Donovan Leisure Newton & Irvine, New York City, Douglas V. Lewis, New York City, of counsel, for appellee.

Before CLARK, Chief Judge, HAND, Circuit Judge, and DIMOCK, District Judge.

HAND, Circuit Judge.

This appeal is from a judgment for the defendant entered after a trial to Judge Walsh without a jury, upon our remand after the reversal of a former judgment which is reported in 239 F.2d 716. We then held that, although we might well have affirmed the judgment for the defendant so far as it was based upon the evidence of what had occurred between the parties up to and including September 24, 1946, it was erroneous not to consider what happened thereafter and we remanded the case for a retrial. It now comes before us again upon Judge Walsh's dismissal at the close of the plaintiff's evidence, and the first issue that we need consider is whether it was "clearly erroneous" to find that the parties never reached an agreement upon either of the proposed contracts.

We assume an acquaintance with the general situation as it is disclosed in our former opinion, and shall begin with Klein's offer of September 13, 1946, to Meyers, in answer to Meyers's wire of the 12th. To this offer Meyers wired an answer of the 16th which did not reveal that he was acting as an agent for the defendant. However, on the same day the defendant, through Thomas, its authorized "Director," wrote to Klein, telling him that Meyers was the defendant's "Export Consultant and that for the future on any and all matters pertaining to the products hereinafter referred to, are" (sic) "to be specifically directed to the attention of the undersigned. On matters, of course, not allied with this organization please refer to Mr. Meyers directly." Both the copra, and the "steel bars," transactions were "referred to" in this letter, which Klein received on the 20th, and there cannot therefore be any doubt that no contract between Klein and Meyers made after its receipt would have bound the defendant. Moreover, even though we might agree with Judge Walsh's finding that "at this point" (September 19) "we have the completion of Klein's and Meyers' negotiations," no agreement between them would in any event have bound the defendant, for Klein declared in his letter of the same day that "we have taken due notice of your information that the deal has to be concluded with Clark-Babbitt Industries in New York."

Assuming, however, that Thomas's letter of the 16th was an offer which Klein could accept, not only did he not do so, but by his answer of the 20th he refused it, because he made it a condition that the defendant should give a "performance bond." Indeed, it is clear that even as to the amount of such a bond he was equivocal. He had cabled that it should be 10% and in his letter he put it first at 5% and later at 10%. On the next day in a letter of curious ambiguity, he threw the whole negotiation into further confusion by saying "we assume that it will be possible to negotiate the deal with only 5% performance bond instead of 10%, as has been requested, but it would not be possible to get a letter of credit opened without at least a 5% performance bond." His cable of the 23rd still insisted upon such a bond; yet on the 25th he cabled: "Your firm offer 10000 tons copra, 5000 tons steel bars have been firmly accepted and both items firmly sold" and then added "in spite agreed upon performance bond will open L. C. without bond." His assertions in the cable he repeated at length in his letter of the 25th; and, after a telephone talk with Thomas on the 25th, he declared by letter on the next day that the...