ROSSVILLE SALVAGE CORPORATION v. SE GRAHAM COMPANY
| Decision Date | 20 June 1963 |
| Docket Number | No. 14107.,14107. |
| Citation | 319 F.2d 391 |
| Parties | ROSSVILLE SALVAGE CORPORATION, Appellant, v. S. E. GRAHAM COMPANY. |
| Court | U.S. Court of Appeals — Third Circuit |
Farrell M. Kane, Staten Island, N. Y. (Ferdinand A. Sieghardt, Staten Island, N. Y., Markovitz & Stern, Resident Counsel, Philadelphia, Pa., on the brief), for appellant.
Abraham E. Freedman, Philadelphia, Pa. (Morton Rosen, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee.
Before McLAUGHLIN and GANEY, Circuit Judges, and COHEN, District Judge.
Rossville Salvage Corporation brought an action in the United States District Court for the Eastern District of Pennsylvania against S. E. Graham Company for breach of a sales contract. Diversity of citizenship of the parties and the requisite amount in controversy are the basis of the district court's jurisdiction. See 28 U.S.C.A. § 1332. The jury found in favor of defendant. Plaintiff has appealed from the court's denial of its motion for a new trial.
On August 7, 1958, defendant's tanker S. E. Graham caught fire after a collision. Defendant, deeming it economically unfeasible to repair and restore her to service, decided to put the vessel up for sale. The vessel was anchored in Narragansett Bay, near Newport, Rhode Island. Since the vessel might still contain gasoline vapor, defendant considered her a hazard to navigation. It hired a workboat with a small crew at $15 per hour to give an around-the-clock warning to other vessels to keep clear of the disabled tanker. It elected to invite bids for the purchase of the vessel. As advertised in newspapers, the invitation was as follows:
One John J. Witte, president of plaintiff, read the advertisement and went to Newport to inspect the tanker. He saw the condition of the vessel and was aware that a small craft was stationed nearby keeping watch over the vessel. The plaintiff submitted a bid, as did three others, for the purchase of the tanker.
The submitted bids were opened in New York City on August 27, 1958. Plaintiff's bid of $19,500, accompanied by a check for $2,000, was the highest. On the same day, defendant's attorney, Benjamin F. Stahl, Jr., telephoned Witte to inform him that his company was the successful bidder and that settlement would take place at 1:00 p. m. in Camden, New Jersey, on August 28, in accordance with the terms of the invitation for bids. He reiterated the necessity of plaintiff's taking possession as well as title to the vessel at the time of settlement. A confirming telegram and letter were sent to plaintiff at its Staten Island office address. The telegram states:
We confirm sale of S. E. Graham to you for the sum of $19,500 Settlement to be held Thursday, August 28th 1 PM at * * * 518 Market Street Camden New Jersey.
The letter, in addition to repeating the information in the telegram, provides:
At settlement we will deliver Bill of Sale, together with Certificate of Ownership, showing the vessel clear of all liens. At the time of settlement you will be expected to take possession to, as well as title of, the vessel.
After he received the telephone call from Stahl, Witte informed a towing firm that plaintiff had been the successful bidder and that he would notify the firm immediately after plaintiff obtained title to tow the vessel down to plaintiff's yard on Long Island, N. Y.
On August 28, the people of New England were alerted to the probability that Hurricane Daisy, which was leaving wide destruction in its path, would pass over that area. On the morning of that day Stahl again telephoned Witte and reminded him that plaintiff would be required to take possession of the vessel. When Witte arrived in Camden and before he went to the place of settlement, he again called a representative of the towing firm and learned from him that a definite decision could not be given until after the threat of the hurricane disappeared.
At the trial, Stahl gave the following version as to what transpired at the settlement meeting: After Witte placed a certified check for $17,000 on the desk, Stahl tendered to Witte an executed Bill of Sale of Enrolled Vessel, a certificate of ownership of the vessel, and a letter referred to by defendant as a "memorandum of closing" for Witte's inspection. The memorandum in the form of a letter addressed to plaintiff states:
ROSSVILLE SALVAGE CORPORATION By: ...................
After Witte inspected the papers, Stahl said to him, "If you are satisfied and will sign the memorandum of closing, we will be finished." In other words all that he required Witte to do, as far as possession was concerned, was to sign the memorandum. Witte refused to sign the acknowledgment for he was unwilling to take possession because of the hurricane threat. When Witte persisted in refusing to sign the acknowledgment, Stahl asked him to step outside the office while he made some telephone calls. Stahl then called A. M. Randolph Charrington, Jr., vice president in charge of sales of the North American Smelting Company, one of the unsuccessful bidders of the vessel, to find out if that company was still interested in buying the vessel. Charrington replied that he did not know but would try to find out. After this telephone conversation, Stahl told Witte that he had been unable to sell the vessel to another but that he would keep on trying.
After they returned from lunch at 2:15 p. m., Stahl called his client and then called Charrington again and learned that a subsidiary of the smelting company was willing to buy the vessel for $19,500 and take title and possession according to the conditions in the invitation for bids. He then called Witte into the office and told him that he had arranged to sell the vessel to another company. Witte then asked for the return of the $2,000 deposit check. Before Stahl returned the deposit check he prepared a mutual release for Witte to sign. When Witte read the release he told Stahl that he was then willing to take title and possession of the vessel, and if someone else were willing to take the risk he was too. Stahl then told Witte, after he had telephoned his client, that his instructions were that he was to go ahead with the agreement to sell the vessel to the smelting company. He therefore offered to return the $2,000 check. Witte refused to accept it.
Later that day Stahl completed the sale of the vessel to the smelting company for a price of $19,500. He transferred to that company an executed bill of sale and a certificate of ownership of the vessel. The buyer in turn signed the acknowledgment and agreed to take over the responsibility for paying for the workboat attending the vessel. The vessel was not moved from Newport until four days later.
Witte testified that he refused to sign the acknowledgment because he had conveyed to Stahl his willingness to put a man aboard the vessel and that he was not asked merely to sign the acknowledgment but he was required to agree that plaintiff would tow the vessel away so as to signify a...
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