*1 reason, cf. United States could be conviction, in law in not the of basis 595, 58, Williams, 71 S.Ct. there v. 341 U.S. would been no error. Adams, 747; States v. 95 L.Ed. United Although the defendant took ex- 807; 202, 269, 74 S.Ct. U.S. ception given L.Ed. charge to the and did D.C.N.Y., Morse, F. v. United States request suggested not charge, the it is McCon 1001; United States v. 2d see parties clear proceeding that all nell, D.C.Pa., can it 977. Nor 10 F.2d fully understood the issues de- and the admission erroneous the be doubted that sought fully pro- fendant’s counsel had vigorous over questioned of the evidence rights tection of the defendant’s in this objection the timely harmful regard. charge plain The failure to this trial. in defendant error of which we can take note I strictly speaking, unnecessary, While agree prejudicial. that the error was taken as to view we have under the requires the that case of issue the trial, we for a new case remanded be assignments of other have examined merit. find them without error and remanded.
Reversed
Judge (specially
TUTTLE,
MOTTAGHI,
M.
Circuit
IRAVANI
Shafi
Plaintiff-Appellant,
concurring).
here, but be-
v.
the decision
I concur in
note
somewhat
appropriate to
CO.,
lieve it
BARKEY IMPORTING
Defend
ant-Appellee.
think
I
approach
result.
different
to have
22,
erroneous
it not
No. Docket 23926.
of this
circumstances
permitted
Appeals
United States Court of
evidence
of the
introduction
trial
Second Circuit.
would
Any
that
complained
evidence
of.1
Argued
5, 6,
Dec.
identify
other
with the
Yawn
tend to
conspirators
carrying
on of the
Decided
March
think,
distilling liquor is, I
business
Rehearing
As Amended on Denial of
that the
relevant,
be said
cannot
April 29, 1957.
acquittal
that
decided either
verdict of
June
Certiorari Denied
Writ of
or
house
riot run'from
Yawn did
See
Attorney, merely testimony offered -the 1. This was establishing purpose ninth al- agent running the leged seen Yawn charge Chapman in this case?' act overt house on Road on from the date in the- Madsen:; is correct” question, That “Mr. and that he had later operation in found a still house. *3 contracts,
There are four main dispute, existence which there performance there of which as to the alleged many, many modifi- are as well as agreements; addition, of these cations many agreements as to there are scope par- the existence and of which negotia- radically. ties differ Most alleged agreements tions on took *4 findings by place correspondence and had of evidence. be made the slimmest judge opinion of 84 The district filed pages, D.C.S.D.N.Y.1955, 134 719-802, although well under- we can problems he stand the difficulties of the faced, issues we must reverse on certain and remand certain additional find- ings on other issues. chronologically We shall first set out gave rise statement the events which Meehan, City, Th-omas F. New York litigation. to this plaintiff-appellant. Chronology I. of Events Meyer- Meyerson, Kresel & Harold I. son, City (Isidor Kresel, New York general, J. In us deals case before Irving Weinberger, Saul Gordon and L. carpet with of Iranian City, brief), through York agent, New of counsel on Iran, Iravani in Ran defendant-appellee. dolph BIC, York, Valensi in also New in New York. never sold CLARK, Judge, Before Chief any wool In before. late 1949Valensi be * Judg LUMBARD, FRANK and Circuit agent came Iravani’s and in American es. December 1949 Iravani BIC contract greasy ed for of 350 tons1 sale LUMBARD, Judge. Circuit 3 wool, by February white to be delivered brought by This is a action contract M. 15, 1950, per pound at 60 clean net Mottaghi (hereinafter Shafi Iravani opened by basis. A letter of credit was vani), Iran, against Barlcey a citizen of favor, in Iravani’s to be used Importing Co.,Incorporated in New York lading for bills of dated later than not (hereinafter “BIC”). com- February 15, January In 1950.
plaint contained ten causes of indicated would not be able to com ultimately all of which the district court plete February in the contract time. against found him. BIC filed a counter- the contract modified in Iran was Ira claim, court also found agent, Kitching, vani and BIC’s Robert that Iravani had admitted. The court place in in washed judgment therefore entered for BIC in wool, permitted ship white Iravani was $139,723.31, the sum of the full amount greasy price cream wool. No appeals. of the counter-claim. change appears or It is is material. clear * Judge opinion Prank died before impurities that has had all removed after expressed completed, was but he a tenta- agree- shipment. The amounts in the along tive vote for reversal the lines all refer in ments before us to wool opinion. grease; payment however, on the basis 2,240 per pounds. pound. 1. Each ton of a certain amount clean consisted “Greasy 2. types wool” is unwashed wool. If of wool Other here relevant are impurities light gray color, some of re- “cream” which is in shipment moved the wool “colored” which is before is known neither white nor gray generally “washed black wool.” “Glean wool” is wool or brown. pound, shipment contract, modified, later than clean not even as was net
that the completed of credit June A second letter in not time one opened this, drawn disputes to cover not when this was basic the case is finally credit was completed. until the first letter of Ira first contract was completion exhausted. vani December claims was on.
5, 1950; contract was BIC claims the Contract”) (“Third The other contract completed January until April 21 and executed between Throughout January February at 60 1950 for 100 tons of cream wool shipment pound, many dur- net clean indications cents ing there are great correspondence July/August Also in from Iran. diffi- of Iravani’s again April, shipping wool, Iravani that Valensi advised culties very precarious of Iravani’s willing help position finance BIC “would be consignment financial up 150 tons of made aware this. Val- corresponded color en-sialso wools.” consignment arrange- possibility of a By for wool June 1950 the market ment with BIC for colored *5 Iran both the United States and prices wool at lower than for much white rapidly, in Iran rise induced started to wool. buy- partly by presence American April In the S. S. Steel Artisan em- following Iravani, Iran- ers there. Since carrying barked from Iran 70 tons custom, not receive de- ian business did wool.4 BIC accounts indicate this was livery after he had made his until composed 36 34 tons white and tons caught sell, low- between tracts. to he cream, all allocable First Contract to the price his customers and contracts with at 60 cents. There is no substantial dis- rising suppliers. prices from his More- pute to this. habitually over, short of Iravani was “great- May April capital. In wrote that his In two more contracts were made difficulty finance” the matter of between Iravani and BIC. est The first of necessary (the Contract”) time found it these “Second was exe- and about that mortgage $100,- April 19, 1950, property to his to raise cuted between 17 and wool, (200 purchase which was was for 300 greasy 000 for the tons white money washed) and 100 at 70 cents he had. twenty all, sailings York, In were from Iran on which wool there to New convenience, chronologically, For shall list them was delivered to BIC. voyage assigned sailing, order of with numbers to them.. Voyage Date Date Departure Name Arrival Number 1 4— 7-50 6- 4r-50 Steel Artisan 2 5-21-50 7-17-50 Bemsterkerk/Westerdam Designer 3 Steel 6-11-50 7-20-50 Baagkerk/Westerdam . 4 3-50 9-13-50 7- Apprentice 9- 7-50 5 Steel 7-21-50 Bindekerk/Arkeldyk 10- 6-50 6 8- 5-50 Bindekerk/Averdyk 7 8- 5-50 11- 4-50 Bissekerk/Alblasserdyk 10-21-50 8 8-19-50 ' ' 4b-50 9 Artisan 8-24-50 10- Steel Designer 10 11- 2-50 Steel 9-20-50 Apprentice 1- 11 11-23-50 4—51 Steel 2- 4^51 12 Steel Artisan 12-31-50 1-18-51. 3-10-51 13 Alamak/Beerdam Baurenskerk/Aagtedyk 2- 1-51 3-29-51 14 2- 15 9-51 3-28-51 Steel Worker n Designer 16 3-31-51 6- 5-51 Steel (cid:127) 4- 1-51 5- 8-51 17 Steel Seafarer 7- 5-19-51 9-51 Beonekerk/Westerdam Saporea/Blydendyk 5-25-51 7-21-51 Yoyager 7-20-51 6-1A-51 through 15, May Valensi. On 1950 he June the S. S. Lemsterkerk/Wester- arrange unsupportable (voyage cabled “as losses #2) United dam set out Barkey accept to half all show future with our calculations States what against wool,5 ar- sell contracts and half to our ac- be from 144 to (This arrangement July 17,1950. Ira- count.” later came York rived New agree- to until be known the “half-half vani did invoice not ment.”) covering agent, BIC’s June later and three invoices Etching, approximately 129 tons cabled that Iravani intended to shipment billed against allocate the this were the con- (the invoices at 60 two against sixty 5,1950) [i.e., tracts “half July 6, 1950and December dated [i.e., seventy 20 First half Contract] First Contract allocable July (invoice and that dated Second Contract]” tons at 70 cents contemplated completing evidently 1950) the Second the con- allocated hand, days. ac- tracts or not BIC’s within 30 Whether Contract. On the proposals acceptable allocation as to counts differed both original Certainly time prices. ac- BIC’s is not clear. contracts and BIC’s suggests shipment accounting, QQ, final respect are Exhibit counts with to this wool, pro- did 6 tons were that it accede the second that 58 tons were white cream, posal ship- allocation contract allocated this was nothing support ments this has in some allocated some First Contract. BIC ambiguous August cream to made statements the Second Contract wool, Kitching colored to Iravani. the Third. 50 tons were agreed court, however, apparently for at to no contract allocable *6 extent, per it pound. was Iravani to some found for This since 42 cents net clean Iravani on second of action in account- in accord with BIC’s consistent whereby shipments voy- ing procedure noth- allocated which claimed that it ages #2, ing applicable until and Contract Second #4 #9 January proposal allegedly completed, the Second Contract.6 As was First allocating half for consignment half on contracts and —the 1950, Etch- In June BIC was told “half-half” district court —the taking ing a severe loss was that Iravani to this on or found that BIC acceded of the ris- because on the First Contract ing 28, contrary September Although expressed market. accounting. discussion of See the BIC’s great annoyance failure to at Iravani’s fourth cause infra. time, complete Iravani contracts persuaded restriction in delete a BIC to annoyance Despite BIC’s with Ira- pre- had of credit which second letter suggestions delays for revision vani’s drawing on until Iravani from it vented contracts, he first entered in- of the three was exhausted. the first credit fourth contract with on June ato “contingent difficulties, upon you 30,1950 was his financial which To ease suggestions completing your present out- made two BIC [Iravani] vani ship- may helpful accounting find to com- for district court it No over-all accounting. ships pute made the dis- such an on all ments provide did not court. trict Despite this, wholly the district later found to be and BIC’s agreed many with BIC that when items, stated that As reliable. country many computa- in this he owed Iravani arrived had to make therefore pounds 44,639 Contract, appear figures on the First from such in the tions record; figure many figures appear was based on which which BIC’s ac- approxima- counting, QQ, opinion ship- in which all Exhibit are therefore in our voyages conflicting only, derived from evi- ments white tions ffffl-ll only. to the First were allocated Contract record. dence inconsistency accounting have been could avoid- over-all This This lack accounting pre- analysis had of the conclusions ed an over-all various made especially pared. troublesome. On remand the briefly standing events for To summarize with us” 200 tons contracts through July parties per had greasy 1950: The wool at cents net white calling ultimately greasy pound, made four contracts tons of and 200 clean 1,140 tons, per and more than for total clean cream wool at 75 net although arrived, 305 had the allocation
pound. dispute. is in The transactions, completes June This by July alleged- wool market had started to rise shipment except one 142 bale sought involving and Iravani concessions consignment ly underlies which non-chronological irregular i.e., tenta- The court —allo- cause of action. — third arrangements cation, par- side appeal tively found for Iravani ticular well as addi- amounts of wool as part taken. decision is from that tional financial BIC did assistance. Laagkerk/Wester dam S. The S. agree to some financial assistance. Apprentice (voyages Steel #5 the S. S. approx- carrying July, #6), sailed in August Kitching notified respectively. imately 21 and BIC that he had for 32 the documents among claimed allocations white wool aboard the on this as tracts Apprentice (voyage #5) Steel sharply. differs July, supra, left in rec- see for which he States in both the United The market Barkey pay $20,000 ommended to various espe- rapidly Iran continued to rise people in New York for account. Iravani’s cially Korean war. because of the payment This was to be at the rate again correspondence an- BIC’s indicates pound. complied 70 cents clean explana- noyance Iravani, Iravani's immediately. pro- with this This same requests delay that BIC and his tions for involving “Twentytwo cedure, Tons open Con- the Fourth a letter of credit on Seventy Seventysix And White Cents immediately. rebuked Valensi also tract Sixty Ap- Tons All Cream Cents delays requests for Iravani for his again August prentice” was followed arrangements. and additional alternate and BIC one Murad expressed however, time, At this account, requested. *7 willingness documents to surrender again, shipments Here on white shipped on the 149 tons 144 to 27 January 1951, wool until BIC allocated #2) (voyage Lemsterkerk/Westerdam the white wool to the First Contract at 17, July York on arrived in New which require- 60 cents. Because the cream against which 27 tons BIC 1950 already ments the First Contract part $17,000. sec- This 27 tons is met, 76 tons of BIC allocated the on the Second Con- cause of action ond shipment in this to the cream wool Third Iravani claims 70 tract in which Contract, 60 cents for also at cream. pound. court found for Ira- The district These 54 of white wool tons are in- parties implies did that the and this vani volved in the second cause of action on shipments agree at least some Second Contract. among divided, least to were August, ships contracts. first two Also in four more left Designer (voyage carrying July the Iran' wool from Iravani to In Steel BIC. August carrying #3) from also arrived 86 to 88 On 5 the S. S. Lindekerk/Arkel- dyk (voyage #6), York, tons, 32 are asserted sailed for of which New carrying apparently to the Second 27 tons white wool be allocable Contract. to July Laagkerk/Wester- on the S. S. and 5 tons cream and arrived Novem- Also Kitching (voyage carrying approximate- this, reported #4) ber 2. As to to dam August Apprentice ly and the S. Steel that he had the S. BIC tons documents carrying #5) (voyage from 124 to 130 in hand the “27 tons white Lindekerk seventy [Emphasis sailed, arrived and both in New cents.” BIC added.] tons September ultimately to First credited this also York Summary of first .months. These also seven Contract at 60 cents. 27 tons Radiogram Etching August 9, 1950. BIC, from to dated contracts, first part cause of two to the second which BIC constitute much ultimately agreed. later on Second Contract. action (voyage #7) Lindekerk/Averdyk September In Laagkerk/Wes- 1950 the carrying August tons, 5, also sailed Apprentice (voyages terdam and Steel the First allocated to which Iravani all of #5) #4 arrived in New York. In (see Contract, the first at 70 cents but early September owing Iravani admitted action, infra), BIC al- whereas 650 tons of wool BIC but declared that tonnage follows: tons located only way suffering he could avoid at 60 Contract to the First of white wool “unbearable loss” was to allocate the “un- wool to the cents, 18 tons of cream negotiated shipments, pur- stocks and Contract, tons of colored Fourth chases” (voy- on the Lissekerk of the contracts. to none allocable age #8), (voyage Lindekerk or #7) #6 (voyage #9), August transit, Artisan 19 the S. S. then in On Lissekerk/Al- blasserdyk (voyage #8) tons, from and yet 260 other sailed available but not against very shipped, to ascertain half it is difficult record contracts voyage. consignment. tonnage shipped half on this propos- This is the the total ship- agreement applied of this al 21.5 the half-and-half white Contract; Iravani’s al- is involved in First the second ment cause of action and and Contract is the basis for the location was Second fourth. 80 tons n arrangements shipments be noted were conceded infra. scope to be outside the of this August shipments last agreement. September 14, 1950, Ira- (Voyage #9) which left Artisan shipping vani cabled he was August arrived New 24 and Iran “half contract and half for sale relatively small awith York on October present prices. In hope this manner shipment, of which is not the exact size complete all contracts end November.” Iravani claimed record. clear first, At cept Valensi said BIC would not ac- governed by shipment part this in because BIC claimed agreement, and the second and half-half do it did not business on commission. part action relate in fourth causes The district court found that such an shipment. and al- denied this agreement September 23, was made on among the First and the wools located it was limited to the Steel De- Contracts. Fourth signer shipments, and future that “fu- August, its In BIC cabled shipments” ture meant between First to allocate yet afloat, rather than afloat addition, Second Contracts. *8 yet but not arrived or whose documents accept proposed that BIC bal- vani negotiated. yet had not quently been BIC subse- for Lemster- documents ance a-rgued that this al- (voyage #2), the Steel kerk/Westerdam Designer though made, effect, never went into #3), (voyage Linde- indeed, its own allocation takes no ac- #7) (voyage kerk/Averdyk it, crediting count of all of the white ton- the First the letter of credit for nage Contract, following to the First white and 42 cents at 70 cents Contract chronological order, strict as noted su- agreed paid subsequently color. BIC pra. shipments and for some a draft for these also, sought At this time Iravani to Laagkerk/Westerdam (voyage on the $114,257 have draft the first let- #4). In accounts BIC credited Ira- its $15,000 paid ter of credit in cash to only white, for the vani cents paid $15,000 post- BIC Murad. alleged underpayment 10 cent on the poned payment of this draft. for four constitutes the basis October, In the first cause action. Lissekerk/Alblasser- (voyage dyk #8), Iravani also the letter of Lindekerk/Arkeldyk asked that opened (voyage #6) (voyage for the Fourth Contract be and Steel credit regardless Artisan incompleteness #9) arrived New York. finally BIC * * * running headlong agreed modify of mean into _ fourth letter to According thereby making bankruptcy.” testimo- im- to his for credit Iravani ny however, complain- mediately available, upon Iravani was rather than ing chronological allocation but completion contracts. first three only about the 60 cent credit Apprentice In November Steel agreed although cents, to be at 70 alloca- York, (voyage #11) New arriv- left for ble to the First Contract. We find no ing approximately January 1951 with any response record of to this until Val- 210 tons of white and cream wool. January ensi’s 5 letter above. noted $30,000be to Murad vani asked that again In December Iravani asked for agreed, “of the to which because BIC financing consignment and BIC evident- high you very equity which balances ly agreed to finance 200 tons York.” now have in New Iravani here pound. net clean On December 31 requested finance also BIG to additional (voyage #12) the Steel Artisan left Iran consignment refused business carrying approximately York New com- to do until all contracts had been tons, of which 75 had been sold urged pleted. Valensi and buyers. Iravani to other compro- come York to “effect to to New ton after mise settlement 400 contract” Apprentice January arrived Ap- shipment the Steel the 175 ton 4,1951 and BIC credited 9 of its 44 white prentice. seems to indicate BIC’s cable Contract, tons to the Second the other 35 would the 400 ton involve having applied completing to although according Contract, Fourth according First Contract to BIC’s ac- calculations, no under its own counting. arrived New York yet had been receiv- the Second Contract 28th. reply invitation come to ed. arrival, Before Iravani’s he cabled that fly York, promised New he had tons on the Steel Ar- December, but York in because of New tisan, of which 75 were committed to trouble, arrive he did not until Jan- visa others. He also cabled he 250 addi- 28, uary tional tons which wanted BIC to sell for his account. BIC cabled back that it November Valensi wrote Ira- your being charged would “do behalf.” utmost Valensi that the wools were vani reply chronological very Iravani that this seemed wrote or- off to the contracts enigmatic to him. der, expediency,” rate and he “as matter apparently expected stating January 5, BIC to handle repeated this on (145 plus on the “contrary understanding Barkey Steel Artisan your 250) consignment the additional on a accept one-half will not these wools alleged consignment basis and this contract and sell the other one-half under fifth and stitutes the sixth causes of your pric- ac- account at current market *** time, Barkey attempt tion. At this Iravani also will to seek asked es agents BIC to deliver on all contracts full satisfaction open in New York and to a letter of cred- ship.” you Iravani re- wools whatever $200,000, it for with both of which BIC letter, plied November Valensi’s *9 reiterating complied, “again you assure receiving accountings BIC’s after cooperation.” our utmost This letter of complained that BIC had calculated vani against opened credit was the 250 tons. by cents wool drawn Iravani at at 60 70 subsequently Valensi cabled Iravani on “we and declared therefore cannot cents January 13, 1951 that the 250 tons had Barkey why Mr. has now cal- understand * * * by prices been sold BIC “However adnd them at 60 cents reduc- culated your for whether sale [sic] account left price ing] ship- 60 cents for the those hundetermined [sic].” already paid has he ments which * * * His cents BIC claimed that at at 70 insistence this time it us needed complete complete our 450 contracts, we should tons to own that contracts cents, excluding pay- while at 70 we are tons from the ing here, simply Lavis, Secretary Julius twice amount would Artisan. that March, settlement in and this the Steél occurred BIC, that before testified also supported by testimony. is February, The Lavis’ in arrived Artisan outstanding found that settlement court on the 523 tons owed 7, occurred on March or about on the second white 258 tons of tracts: contract, put in terms never the fourth settlement were 200 tons white writing. Briefly, two are versions fourth. cream on the tons of and 65 as follows: 28, arrived By January when ship approxi- Iravani: He was to tons York, delivered he had in New thought pound; BIC, wool half- white mately at $1.25 850 tons to agreement half agreed four written con- half-half to the BIC had that to remain in tracts as amended were division proposal modified further already effect so executed and First far between contract cancelled to Iravani still the extent that Contracts. and Second them; owed wool under the 395 ton completing at least had resulted consignment with commission for Iravani also a Third Contracts. First and 5% effect; fu- BIC still other completed remained Second Contract he claims by large ture would be handled a amount time had joint agree- consignment venture basis. half-half under the consignments. ment, and the colored ship BIC: Iravani was 150 tons parties were between The accounts sharply disputed, per pound; of white wool at $1.10 they almost had been aside; half-half was to be set relationship. beginning their from the get prices Iravani was to BIC’s from his customers for wools less 5% February 4,1951, the Steel Artisan complete in order to the Second Contract carrying (voyage #12) arrived after; Fourth Contract for wool which of Iravani’s was to be cancelled. only 120 it obtained BIC. BIC claims upheld The district shipment. BIC’s version This will terms, analysis as to all the and found further sixth discussed any shipment claims Iravani had under the of action. cause discharged Artisan, first four by contracts also there was on the Steel arrived settlement. Iravani claimed was lot which a 292 bale together with for his account to be sold bit, anticipate To Iravani further denies that these 292 the rest. claims that agreement June 150 ton consignment in- be on bales were to changed tons at right that Iravani deed denies accepted only of which BIC This claim the wool at all. is 80, refusing accept September. 40 in fifth cause for the basis BIC denies the modification and claims largely separable from the it since full 150 were received and events, descrip- full shall defer accept he the 40 excess refused to because analysis of that tion until longer wanted to do business with action. testimony by Iravani. There is both York, Barkey Barkey New his arrival in and Murad was at After willing payment, pay $37,000 to BIC first tons, presented two drafts for the 40 acting Murad, already to, $114,071.31 whereas referred one behalf, $40,000. $316,010.88. asked other for The wool and the pay fallen then. market had refused to them because claims enough On March 1951 a credits wire did not was sent *10 Irving by the Trust BIC claims that Co. Bank them. Melli cover * * * stating “Barkey February requests or Iravani in Iran 20 22 and * * * you pay a of the us cable it will settlement differences at arrived drafts * * * get would for them which steamers between and Alamak that then Laurenkerk [which of trouble Steelworker out following Iravani claimed the on had left Iran time] drafts. the 248 quantity Procedure,
basis and of one third white cream Civil 28 But U.S.C.A. point per pound “clearly dollars one five the two words do erroneous” sixty point meaning; two thirds dollars one and have fixed a their content colors one.” varies dollars relies the with nature of the evidence. heavily support Prince, 1951, See Cir., on his Gindorff this cable to v. 2 189 being Ultimately, version of F.2d at 897. settlement al the rule is ways finding pound tons, ‘clearly for 150 rather this: “A $1.25 is erro although than neous’ when evidence $1.10.- there is it, reviewing dispute support is There and after the of entire arrival the Steel Artisan evidence left is with definite (voyage #12) February 4, 1951, and firm a conviction that a mistake has shipped. of total 619 was committed.” United tons States v. U. Gypsum Co., 1948, 364, 395, S. claims that of this amount 395 tons was 333 U.S. consignment (see 869, 525, 542, 788, on action) 68 cause of S.Ct. 92 sixth L.Ed. joint a and was ven- 1147. 70 (see eighth basis and ture the seventh Turning to the evidence before action). of causes case, us in this it is clear for his alleged joint venture, to this As judge conclusions trial relied almost of vani claims that two letters credit exclusively on inferences drawn from opened-one $300,000 for and were one documentary undisputed evidence and $100,000. testified e.g., F.Supp. page facts. 134 See at against $300,000 not draw did testimony rarely 730.8 oral although joint venture he admitted on, except relied for such admissions that he did draw it to the ex- ascertaining as were made and for $208,830.55, of of tent parties. intentions There was under which all but one were not joint ample justification for this treatment of agreement. $100,000 venture many evidence inconsistencies up letter tirely, credit was used almost em testimony confusions offered allegedly for the 70 tons. F.Supp. page 134 at both sides. See circumstances, such 724. Under we are Scope of II. Review good position in as as the district us, before The issues court to the evidence. evaluate largely exceptions, factual, are a few Analysis III. of Individual trying district court and as the Causes of Action “findings jury, its without facts clearly analyzing unless action, fact not be set shall aside the causes 52(a), erroneous.” Rule Federal Rules shall set out in a the ten first foonote briefly, pieces the crucial 8. set out here We Fifth cause action: The issue judge prin- purely which the trial of evidence one of law. cipally Undisputed' relied for conclusion as to of action: Sixth cause computations. F.Supp. Of course cause action. each analysis at facts separate pages causes of 78&-784. infra, eighth evidence and inferences will causes action: Seventh thoroughly. more of a letter be examined of credit. The use n Correspondence F.Supp. page of action: First cause 793. at through in facts F. cause of action: Not Ninth sufficient #1-26 pages #1-28. F.Supp. Supp. proof at 727. at shown. 134 794. Correspond- Disparity cause action: cause Second Tenth of action: be #2-28, #2-27, in facts ence dates of contract tween the set #2-34 F.Supp. pages 744, 734, agreement. at 13 tlement #2-35. pages 801-802, 781. documentary action: cause of Written com- Third Where and' evidence computations, undisputed inconclusive, munications F. facts the- 750-51, pages Supp. plaintiff court held that had not Correspond- action: Fourth sustained his burden. (facts 134 F. #4-9). ence #4-8 pages 759, Supp. *11 suit, (cid:127)causes action involved disposition, court’s both parties’ each, contentions as to tentative and final.9 Cause BIC’s District 9. Court’s Disposition Action Contention Defense parties agreed
1. The to Denied BIC owed change price shipments on shipments voyages 3, 7, under #2, the First Contract in the sum of voyages 3, #2, $3,790.28, 134 F. 4, 7, Supp. page from 60 to 70 cents but whatever was per pound. due Iravani was dis- charged by the settlement of March 1951. Shipments Denied aboard BIC owed Iravani Demsterkerk/ Westerdam (voy- voyages 5, 6, #2, age #2); Steel in the sum of Designer (voyage $10,548.85,134 #3); Steel Apprentice (voy- but whatever was age #5); Iinde- due Iravani was kerk/Arkeldyk ultimately dis- (voyage charged by #6); were allocable to settlement. second contract at cents; ship- 70 ments aboard Dissekerk/ Alblasserdyk (voyage #8); (voy Steel Artisan age #9); Steel Designer (voyage #10); and Steel Apprentice (voy- age part #11) are agree- of half-half ment and also are
allocable to second contract. BIC owed Iravani were bales Denied. The the sum wools $1,145.24, Supp. signment, 134 F. sold at sold to BIC at page 751, 91 cents but cents and 75 but this was credited them to cents. ultimately discharged Iravani at by the settlement.* 85 cents and 75 cents for white and cream respectively. Although a Shipments The half-half aboard agree- half-half existed Dissekerk/ existed, ment Alblasserdyk and went into never went into (voyage effect as to the #8); effect and all aboard Steel Artisan Designer (voyage the Steel #9); (voyage are allocable to Designer #10) and Steel Appren- the first con- (voyage Steel #10) and (voyage tract at 60 Apprentice tice #11). cents. More- (voyage Iravani therefore #11) are over, right in the has consignment, * appeals only issue wiped the conclusion that the settlement out $1,145.24. his claim *12 figure and white mixed for a 60 cent First Cause Action average of 70 colored, derived In his first colored. alleges August 42 cents and white Iravani 1950 the cents for ship- allegedly applied to certain proyide First Contract modified to This was §73,071.94, F. pursuant half- settlement to Supp. agreement. agree- at half-half half however, was which discharged set ment was ab initio. aside agree- settlement ment. nothing BIO owed on Steel 292 bales 5. Denied. (voyage Iravani because Artisan never Iravani to disclose failed were sold #12) owned that one of his ac- BIO when payment it, checks and Iravani purchased count wool had to was entitled for BIO’s was been returned proceeds, in the account own thereby bank, net amount Iravani perpetrating §43,119.91. not entitled was on BIO. fraud anything. BIO, For agreed because consign- take BIO 6. No got Iravani best tons on was 395 signment Iravani ment. January prices on only to be entitled all that he en- was best at sold BIO whatever January prices. titled to. the wools sold for, nevertheless BIO less 5% applied some most wools its old these to toas §1.10 prices contracts 150 tons. some lower than much January, best as to the well ton settlement §1.10. and BIO For joint BIC. There 7. No joint agreed joint on a was no ven- venture. venture which ture. applied to 70 tons. however BIO credited §1.10 Also wools. purchased on reliance wools joint venture money lost thereon. improperly BIO For BIC. allowance money to returned proper. customer BIO when some of the wools out turned colored. ' original For BIO on all is- .Under The settlement settlement, sues as to the for 150 per- terms §1.10 entitled per tons per pound §1.25 pound formance of by agreement tons; settlement. there was *13 Consol.Laws, erty c. Law, McKinney’s dam ments on the Lemsterkerk/Wester relevant, Designer (voy- 196 is for that deals (voyage #2); § the Steel consignor’s binding age himself #3); Laagkerk/Westerdam accepts, lading terms (voyage of bill of Lindekerk/Averdyk #4); accept- is no there (voyage evidence #7). for all BIC accounted Laagkerk/Wes- lading aed bill of for the shipments 60 cents relying terdam. court, white wool. page correspondence noted on court, however, concluded The district averaging discharged 10, supra, agreement held that such settlement agreement at but that ex- had been arrived As will be BIC’s debt to Iravani. disagree plained, infra, shipments with this aboard it did not cover direct Laagkerk/Westerdam conclusion and therefore the cable since that, moneys accounting due be- August 23, final mention did not parties claim tween the Iravani’s 729. The district $6,790.28 rein- be of action for on these therefore found that court shipments, underpaid stated. BIC had
$6,790.28. Action Second Cause of of action involves This cause finding Appealing from the as to allegedly eight applicable shipments, all Laagkerk/Westerdam, claims per Contract at 70 cents to the Second pound. pre- “bill,” invoices and draft February by sented to BIC and 1951, allegedly shipments The first four were refer to all four straight delivery pursuant proves average, under a cent and that this modification, (1) Contract, by on: four were covered Second (voyage joinder four We do not find this Lemsterkerk/Westerdam Designer (voyage (2) sufficiently #2); the Steel on one document Apprentice (voyage (3) persuasive the Steel !#3); district court’s to reverse the Lindekerk/Arkeldyk (voy #5); (4) judgment. Nor we find that Iravani’s do age #6). Prop- Personal New York reference to changed modification to this was 120 tons at for 120 $150,000; all of which BIC delivery tons were took received, only 80, refusing delivery take the rest. Although gums wrongfully Property is
Gums Iravani’s, are holding Iravani’s, Iravani’s rights to them property. security held as might well be af loans fected Iravani. judgment entered for BIC.
BIC’s Contention Defense BIC, Barkey paid propri- For since it out Admits
Counter- $139,723.31 ety is admitted more of such claim Iravani. than deduction any recovery, entitled to. although this admission re- tracted on appeal. alleged 70 cents. therefore are later four entitled to applicable Contract an additional 10 to the Second pound $2,870.40 or and were this cause under the half-half (1) action. Lissekerk/Alblasserdyk on: (voyage #8); (2) Artisan court, however, The district held that *14 Designer (voyage (3) #9); the Steel discharged agreement the settlement Apprentice (voyage #10); (4) the Steel disagree Iravani’s claim and since we (voyage #11). with this we hold that the amount of favor Iravani must be reinstated. to shipments BIC credited of these the First Contract at 60 cents. allegedly shipments As to the under to the The district found court agreement, court half-half the trial shipments first four Iravani that found none of four allocable to proving that sustained of burden his The court Second Contract. district agreement parties, of three of found, analysis of the fourth cause its Designer them—all Steel but the agreement action, —were half-half that this and that allocable Second to the Contract September had been made in underpaid $10,545.85 BIC Iravani dispute parties The do not now this. page these claims. 134 at concluded, however, that district court support Iravani had his burden not sustained In of his claim the Steel that Designer proving were shipment cents, these was also at to allocable Second Contract because Iravani July relies on his dated own invoice according only evidence, supporting agent, 6, 1950, the claim that BIC’s self-serving court, Kitching, letter to the authorized this and forwarded a. paid it, a after draft which the fact that on June through The court $20,000 settlement. therefore BIC Iravani one cor- Shimo, cluded that if were the whereas 60 cents rectly by BIC to First price allocated correct the amount Iravani due only Contract. $17,222.40. would have totaled Moreover, copy own BIC’s of its letter main to Iravani’s contention seems Kitching, apparently to in reference to that at the time these Designer shipment, the Steel states: arrived, already First Contract was Randy “We authorized to tell wrong. clearly completed. is But this may open $20,- that he draw an draft tonnage place, first uses In the negoti- you if he turns over to good claim, support percentage lading covering shipment able bills admittedly wool. colored wool, of 30 tons white documents in place, trial Iravani ad- second good order.” Next to this there ais owing wool on the First Contract mitted pencilled Designer notation: “St. Billed complete He that he did it. never by Iravani 70 cents Pd to Shimo.” present additional some evidence does evidently The district court concluded court did not con- which the district presented that Iravani had not agree sufficient very persuasive, and we sider support his claim evidence as to the district court. Designer shipment. Looking only conclude that on therefore We documentary to the evidence in the rec- $13,- owes us, ord before we are constrained to re- ($10,545.85 plus $2,870.40). 416.25 cables, verse this issue. We find the Action Cause Third letters, and notations noted in the im- mediately preceding paragraph district court found sufficient that on the validity consignment to establish the BIC owed Iravani’s 142 bale important appeal $1,145.24 claim. The most items and no are is taken from $20,000 Here, also, the reference in the letter the district that. court held pencilled obliga- thereon notation re- eliminated BIC’s settlement ferring payment already to Shimo and for reasons stated we tion by Iravani’s check was returned bank to recover is entitled hold that Iravani Bijarchi with note “Refer to Drawer.” $1,145.24. goods sent the bills Action Fourth Cause of lading Murad, time not for agree half-half This involves Bijarchi later de- account. according Iravani, which, under ment comply clared that Iravani had failed consignment agreed half to sell with the contract or sale and had no shipments. causes See certain right to the wool. F.2d 249 of 244 action assumption On the had a 9, supra. found note title, delivery valid BIC took was made such an February by posting on or about a let- September 28, 1950, was limited *15 guaranty ter of Iravani’s on assurance Designer ship and future to the Steel ments, that the would title documents follow. shipments” meant that “future Shortly February 14, 1951, after Jacob yet afloat, than not rather Barkey, president, Murad and BIC’s Ira- yet or not arrived afloat but office, vani at conferred at BIC’s nego yet whose documents had not been Bijarchi’s time Murad asserted title and $73,- tiated Iravani BIC owed that Barkey Barkey asserted Iravani’s. tes- however, held, 071.94. The district court BIC tified that Iravani never told discharged that the settlement had BIC’s 100,000 the returned for check rials. obligation as well. claim this wool Iravani that was on claimed this very There is little evidence on this consignment; claimed that BIC claim to see no reason disturb applied was to be the unfinished original district court’s conclusion. price specified contracts However, of other three causes settlement, on BIC’s March books agree we do not that the record originally was in June Iravani credited finding obligation supports BIC’s that price 1951 with for which BIC sold discharged by settlement, was and we wool less 5%. original finding in reinstate of favor bought Ultimately, BIC itself the doc- Iravani. 1952 for uments November Cause Action Fifth of original equivalent which was to ship- Iravani that a bale claims price to Iravani. arriving Artisan, ment aboard the Steel that if district court stated this agree- February 1951, part of was an that, consignment, the usual rule for ment BIC to sell account, agent may principal’s question his not and that entitled to taking preclude would title the' $43,119.91 of for from the sale this wool shipment for its own account. See Re- which BIC never accounted. claims court, statement, Agency But 417. § that wools, had title Iravani never to these Barkey’s testimony believed Jacob that. purchased them that BIC from an him about the Iravani did not tell re- independent party, and third that it check and held that this turned conceal- duty to therefore had no account to operated as a fraud BIC. ment The- Iravani. court said: November 1950 contracted “ * * * regardless ques- buy Desfouli, manager of the to from one agent agency, was the failure Sherkat Jenoob who tion owner, pertinent Bijarchi, 54 tons of reveal all of the Barkey wool for to facts Barkey something 3,000,000 pos- took in excess to before rials.10 goods 300,000 down amounted rials and lat- session gave 100,000 part. further er Desfouli two checks fraud his We 100,000 inducing 50,000 fraud rials and rials. The rial clude exchange 100,000 applicable, At then the rate of 1 rial worth 2 cents. was 10. $2,000. rial worth check was therefore place found took Barkey possession which the district court to take being on March 1951. all of causes goods (Iravani) these without them, good action the court found convey title able BIC; Barkey po- moreover, that: thereby in a it concluded placing' eventually they would where sition “Inasmuch as the first three caus- documents, buy have disputes es of action involve magnitude preclude such open were out in the before the set- ac- recovery on this vani’s arrangement reached, it tlement page F.Supp. tion.” likely does not seem to this court theory seems court’s The district disputes would returned of the known that had BIC to be disposed the final settle- n check, * * * delivery of taken not have it would decision, This there- ment. sold not have would then the wools. It disposes plain- fore, of all claims buy doc goods forced to and been second, first, tiff has in his asserted fail to protect But we itself. uments third, ac- fourth and causes of sixth any, deception, harmed if .see where tion as well.” 134 until check not learn It did BIC. time, By November *16 No memoranda of this settlement was profit— very substantial a had sold—at by made or and each either Iravani goods Iravani’s obtained because offers a different version. purchase doc of the of title. Its claim the terms of testified that hardly assuring profit can such a uments settlement were as follows: move mere defensive as a considered be Moreover, by fraud. Iravani’s caused original contracts, All 1. to n doubt would conduct that BIC’s they unfulfilled, were still extent knowledge changed by check. of the were rescinded. dispute before a title both It knew of 2. The half-half goods delivery of it took .and after shipments confirmed as to those al- Cty. King Kaiser, Cf. v. and sold them. ready it, made under and rescinded Ct.1893, 21. Since 23 N.Y.S. 3 Misc. any shipments. as to future by that, diffi it is it was not dissuaded 3. The 395 tons were to sold be return of believe that (cid:127)cult consignment by BIC on at best Jan- 100,000 induced would have rial check uary agreed shipment. prices, originally or BIC to refuse return upon. any event, because we see resulting from Iravani’s harm to BIC ship 4. Iravani was to to inform BIC about the return (cid:127)failure $1.25, at consideration BIC’s check, and remand for (cid:127)of the we reverse releasing obligation him from his goods finding as to whether these were a fulfill the balance the first four consignment. they were, If contracts. estopped questioning from then BIC is BIC were to han- they If title and must account. dle all future on a consignment, then the not dis were joint basis. venture consider whether trict court will have to Barkey applicable either Iravani’s testified as law Jacob under follows: goods, or the relations interest these 1. The Second Contract was to be parties, was sufficient to re between However, completed. this was not regardless quire to him BIC to account per pound but at at 70 billed n consignment. i.e., prices prices less at 5%— Eighth Seventh, Sixth, and Tenth Causes wool BIC sold the to its cus- Action All other less tomers 5%. indirectly except directly at al- tons were $1.10 all or These turn prices disposition less proper at billed the settlement flie so. 5%. point Contract, noted Iravani had admitted one Fourth 2. The unfulfilled, that BIC from to be received it was extent Artisan, tons from the Steel rather than rescinded. originally This, 145 tons as claimed. ac- agreement was half-half 3. The cording court, to the district reduced ab initio. to be set aside consignment claim to 375 at De- most. addi- to sell an Iravani was ducting tons, the 471 the court to BIC white wool tional 150 tons of concluded BIC could treat 96 tons as although per pound, at $1.10 regardless fit, it saw existence originally asked for vani pound. $1.25 consignment agreement. It then conclud- ed that items those for at best accepted BIC’s ver- court January prices—excluding the cream phases of the settlement. sion wools, including 23 tons at $1.10— Action Sixth Cause of amounted to less than 96. therefore It he and BIC contends that concluded that “Iravani received ‘best agreed to be sold were January prices’ he was where entitled to consignment basis at best Janu- BIC on them, prices and billed less where 5% ary prices, as to 11 but that they proper.” (referred dis- as items '#1-11 As to whether cream wools were court), than he received less that. trict light properly grey prices ($1.35) a con- BIC signment the existence such denied light claimed, prices as BIC or at cream ship- It credited these basis. ($1.55) claimed, as Iravani the district ship- The last of ments as follows: ments, held for BIC. tons, approximately 23 which was There is evidence the record' BIC credited at satisfaction $1.10 *17 support finding to the district court’s that settlement; 1, 2, items 3 and the 150 ton light light grey is cream closer to than to applied 8 BIC to old contracts his own cream, appropriate and that is the $1.35 prices and credited Iravani with those price for cream the wool. January prices; 5%, best less rather than issues, however, As to the other not the allocation items and were disagree with the district court. we explained; and 10 consisted of items place, the first the district court’s conclu $1.35, credited at cream wool which were sion that Iravani admitted al January price grey wool, for where- leged 145 on the Steel Artisan they should have been as Iravani claims amounted to 125 tons no ac takes January price $1.55, credited count Iravani’s earlier statement that light cream wool. consignees shipment, the other for this ap- The district court took an indirect got nothing and, important, much more differing proach to the contentions. It thp fact that BIC’s accounts indicate that not decide the issue of the did existence by tons were obtained them 148.5 from consignment agreement, although of a it Artisan. See Exh. the Steel RR. There probable did note that it seemed “that agree fore, we cannot that Iravani’s claim agree Barkey accept goods did to certain should be reduced 375 tons. consignment for Iravani.” 134 F. Instead, Moreover, Supp. page 782. find it first es- it difficult virtually undisputed accept approach as tablished the district court’s problem. Essentially, of wool had been 619 tons delivered from the the district the arrival of the identified 96 tons and after Steel Artisan court which BIC February 4, dispose pleased It as then it deducted could with the applicable shipments as to the for which settlement Iravani claimed un leaving agreement, yet Nothing derpayment. jus 471 as in the record unaccount- tons, to these ed for. As tifies identification and to court conclude agreed price January was “Iravani received found ‘best $1.10 holding $1.25, prices’ than thus he rather where was entitled to them” is- supported by this issue. The court the record. The net district then not ef- really purchases enterprise. feet is that the court never er Iravani’s for the finding However, made whether Iravani as the district court noted: underpaid specific ship- was on those “Although Iravani testified that ments. and re- We therefore reverse against $300,000 he did not draw mand for further of this consideration credit, requested letter of but rather action, which, cause of presently framed, issues are $100,000 letter which could be require a full will ac- lading, satisfied inland bills of counting by parties to all the $300,000 required [the letter ocean items involved. lading] $208,830.55 bills of draft referred to in fact & 8-30 is clear- however, point out, We must ly against drawn the former credit. accounting, that in such an burden of Furthermore, one of the proof is of show that course on covered the draft was same as on these he entitled was allegedly joint one under the made consignment prices. if Of course the dis venture, while the other is trict to find sufficient ba court unable entirely different those deciding sis what alleges which Iravani were made parties respect to the pursuant alleged joint ven- action, dispute items in on this cause ture. qauntum Iravani would be entitled to a recovery “Barkey’s explanation meruit for such items for of the let- being the court should find that he had ters of credit issued to cover paid. is, therefore, other transactions probable more of the two.” 134 F. Eighth Seventh and Causes Action Supp. based These two claims are It not clear whether the district joint alleges venture which Iravani held because dis- agreement. part of the settlement drawing against him believed In his seventh cause credit, thereby letter weak- claims that 70 tons of white ening story joint venture, his whole of a joint pursuant to venture which or whether the district court considered only, BIC credited to Iravani at $1.10 *18 highly improbable $300,000 it actually when it should him have allowed of letter purpose would issued for one credit profits half the derived from the sale of upon and drawn another. In this wool. event, find either that the inference eighth action, In his of cause Iravani by unjustified. the district court drawn alleges in reliance on this place, In first it is clear that Ira- a n joint venture, he made contracts and using $300,000 vani did admit letter money purchase wool, laid out for the of credit, not of but in connection with the repudiation agree- Bid’s and that of this joint Secondly, venture. we fail to see damaged ment him $93,- of extent significance alleged the crucial '270. The district court concluded that “inconsistent” use a letter of credit although joint Iravani’s evidence of a admittedly inappropriate which was raised “certain venture inferences of its purpose originally for which was it n existence,this court does not believe he issued. proof sustained the has regard.” burden in that Moreover, It therefore held it we find the other unneces- evidence eighth sary very persuasive. to examine the cause of adduced ac- On any 8, 1951, in detail and dismissed it. March Valensi made tion the follow- ing memo: office court’s conclusion was “ entirely
predicated almost ‘Memorandum re: one item. Future Busi- stated Barkey Iravani had that a in ness Wool between letter and opened credit had been BIC to cov- Iravani. “ Barkey whole, morning On has we think Iravani Jack ‘This sufficiently joint proved subsequently by phone the existence of a me called presence of venture. He should be credited therefore him in the I interviewed concerning with what he claims on the seventh cause at his office Mr. Barkey decision, view of our business between future Iravani. “ [*] ‘In reply [*****] my inquiry concern- district court must consider Tenth Cause Action eighth action. remand ing operandi Mr. modus which claims tons that the 150 Barkey would Mr. Iravani of white wool in settlement was to be Barkey in- Mr. their business duct per pound, $1.25 later that this was probably as- it dicated that would ap $150,000, modified to 120 tons for or sharing profit the form of a sume proximately per pound. Moreover, $1.15 ” page 785. venture.’ accepted only he contends that BIC underpaid tons—on which him—and addition, one itself cabled accept September refused to suppliers directly, Ira- Iravani’s gone 1951 when the market had down if would vani claims he not have allowed per pound. 80 cents com denies this Furthermore, partners. two not pletely. It contends that who the letters of credit did indicate per pound, were at $1.10 there was pay freight, ad- was to which Lavis $150,000, modification tons for according unusual, mitted was most tons, that it all of received the 150 Iravani, freight, like all shows that that it refused the 40 tons because it profits, expenses and shared. to be no desire to do more business urges prices Iravani also in his Iravani. district court held for BIC per pound rather were not invoices on all counts. prices per ton, metric and that According court, approximately pound to the district amount to $1.37 through prop” yield. BIC, vani’s “main was the cable from La- 50% Irving vis, Trust Co. to Bank inMelli claimed that the invoices were ac- “ higher tually Iran percentage dated March 1951: on a ‘Without based Importingco Responsibility Barkey yield, reducing per Our which resulted Requests Informing pound price Cable You It Us From cross-ex- $1.10. Pay Lavis, Will Honor And Your On Drafts amination it seems rather clear Eighty percentage yield Shafi For that his would Five Percent unusually high Shipments apply in Of one to esti- Value Wool Steamers mating, point, Alamak and as to Steelworker Laurenskerk Fol- *19 lowing story Quantity seems more the Basis Onethird consistent with oth- White Onepointtwofive undisputed And Cream er Dollars Per facts. Pound Dollars Twothirds One Pointsix- evidence, On basis of this we think the * * * ty And Dollars Colors One. Iravani has sustained his burden of F.Supp. proof. agree Since we do not with the figure testified the that $1.25 significance district court the the in the cable was result of the settlement credit, nothing letter of we find logical. and to the court this seemed the rebut inferences Valensi’s court, however, say: district went on to memorandum, and the unusual character “ * * * credit, letters of but he also these with the asserts omis- that freight. figure pay by sion of was was who of $1.60 More- the averaging arrived at Bigelow over, per pound Iravani’s version of the the and Smith prices plausi- in the prices. invoices Yet the seems more available evidence BIC’s, unusually ble than in view of the that the indicates settlement oc- high yield or required estimate which is March in curred * * * figure. to arrive order at BIC’s the -while Alexander Smith only tons, shipment the and the March until made contract was not not be- do district said “We 16th. by the has out lieve that been borne that “Therefore, cabled since preponderance of credible evidence the fig- using 7th, the his officeon March Although find not in this case.” dowe could $1.60, latter the ures $1.25 unwarranted, that think this decision we by any hardly have arrived been ought open it for further to be left averaging-in Smith Alexander of the pro- light of further sideration the price. contract ceedings after remand on the Irving by Trust “The cable the phases an over- and on of the settlement 20th, Company used the dated March all allocation. figures used same In its of the tenth cause discussion Barkey’s Hence March 7th. cable beyond the court went explanation more the now seems thought evidently was It issues. probable of the two.” likely the not that claims Iravani’s pages 801-802. have first not four causes of action should reasoning toas the basis discharged by settlement rejected figure, district court $1.60 concluded district court therefore figure. Iravani’s claims as to the $1.25 examining they that been. After reasoning. We cannot follow this testimony exhibits, find no we place, by agreement do see first we not evidence of such an necessary proba- agree- Nothing parties. connection between the an about such bility price Barkey’s that the contract Smith ment is to be found Jacob figure arriving settlement, used at the $1.60 of the and Iravani’s version figure. reliability directly contrary. and the there- $1.25 version We they were ar- There is no evidence for lack of fore reverse this conclusion pre- supporting evidence, and whether rived at similar methods and as we averaging viously judgment indicated, was arrived at an as to the $1.60 Bigelow first, contracts is second, and Smith causes of third and fourth accuracy logically accordingly. irrelevant to action is reversed price. $1.25 Ninth Cause Action place, even if there is In the second largely cause of action is This figures, the two some connection between independent of the Part of the 395 rest. argument agree alleged consignment turned out tons on contract was fact Smith an allowance be colored and BIC made days settlement after dated nine Bigelow-Sanford. $8,733.95 to mean its terms does not protests on this and its was not consulted contemplat- known or not have been could payment. The district court held that it ed on March 7 when settlement wrong nothing ap in what could “see figure might agreed upon. well The $1.60 pears correction for an to be honest part on Smith con- based in have been shipment of colored wool” and erroneous agree with the dis- and we cannot tract supports record for BIC. The held *20 judgment that “since Iravani trict court’s the district court and we af conclusion of using on March the cabled office disposition of of this cause ac firm the figures 1.60, latter 1.25 could of tion. by hardly been arrived at aver- have The Counterclaim aging-in Smith of the Alexander contract hold price.” dis- We therefore The counterclaim defendant impression that first $1.25 court’s asking trict counts, $177,039.86 ed two probable price only was more was the $66,887.97 sec count the first by one. correct supported first count ond. The A, of ren a Account Statement Iravani’s claim a verbal modi- Exhibit As to by $115,- which covered both wool 1951 to 120 dered in June fication wool and white when 70 have cents should transactions which we discussed involving given, plaintiff denied ten credit for unrelated transactions much consignment, wool Account sent and Iravani. The Statement and fail- plaintiff ed to credit plaintiff the de- owed with wool claimed that the delivered joint under terms of $104,000 transac- for the venture. Plaintiff fendant repre- sued $64,000 for the defendant for tions and an additional the amounts sented credit, of the other the last various ten deals. All but failures “supple- dealings conceded, them, itemized the lesser owing balance defendant, Exhibit mental accounts” attached with and claimed $282,780.81.” Appel- the difference of A to counterclaim. Reply Brief, page lant’s Lavis, plaintiff’s reply The contested BIC, explained officer in at trial the minor whole exceptions, Account with Statement of plaintiff’s figure source of $133,763.14: plaintiff ad- but at trial the it was A, taken from Exhibit BIC’s supplemental! accuracy mitted the Account, change, Statement of with one admitted accounts. But Iravani never viz., accounting the last item in the in- accuracy Account Statement volving put up by collateral BIC for wool, trial and the insofar as it concerned Iravani in suit, an attachment an item of accounting was court found that BIC’s $27,000, was omitted from the total. wholly reflection of the not a accurate agree. judgment parties. district court We rendered on the amount, counterclaim for full finally complaint In amended inconsequential with an arithmetic ad- May 28,1954, in a titled section “Summa- justment, is, above, and this as noted one ry appears the follow- Claims” there grounds appeal. of Iravani’s ing: district court’s action amounted to a find- against the said “Fiftieth: That ing that the defendant’s Statement paragraph Forty- amount claimed Account, with the last item de- herein, plaintiff ninth hereof ducted, was an accurate reflection of the to a defendant is entitled credit parties state of affairs between the as to gener- moneys it which advanced dealings. both wool and other If it was ally plaintiff’s for the account in the not an accurate statement of account the $133,736.14 sum of and which de- judgment court should not have rendered separately fendant did not allocate though plaintiff on it even admitted herein, any of the causes of action it, party’s because admissions are allocated, and which cannot be so necessarily evidence and not the truth. plaintiff the balance due giving judgment for the defendant on deducting said defendant after the Statement of Account the sum from the aforesaid sum of $420,537.05, inconsistent in that it took as paragraph forth in set purposes admitted for of the counter- Forty-ninth hereof, $286,800.91, claim identical facts which were tried plaintiff claims herein.” length they when formed the basis of plain- statement was made in A similar suit, main and at the end of that tri- brief submitted the trial tiff’s court. finding found, al in a which we are af- plaintiff appeal, however, vigorous- firming, that the defendant’s Statement ly judgment contests the counterclaim represent ex- of Account did not the true plaining that the “concessions his com- parties. state affairs between the We plaint arose from his accountant’s plaintiff’s exam- do not know whether admis- originating Barkey. of data ination sion was inadvertent or conditioned on a finding data showed paid, The said the amount plaintiff that defendant owed also that but showed defendant $420,537.05 failed to from which the conceded *21 plaintiff proceeds credit with the deducted, of 292 amount could be but in either gave plaintiff wool, justice bales requires cents for event that we reverse Changed $286,800.91 complaint finally in the amended. merely amend our proceedings sis. We therefore remand for further slip opinion page 939, 16 [244 line counterclaim also. by replacing “the F.2d the words 254.] judgment sum, below is affirmed trial’’ 1952.” with “November action; judg- ninth allocating second, bales first, As to the 292 to the ment is reversed as 148.5 on the Artisan which action, tons causes of and fourth third allegedly part were 395 tons to enter is directed the district court consignment, F.Supp. 719, see 134 judgment plaintiff caus- on these for the require opinion disposition we did any intend only our upon but es of action ship- particular this judgment allocation of controversy; entire specifically open. ment, seventh, left issue sixth, fifth, as to the reversed opinion, page slip See eighth and tenth causes disposition of the counterclaim and the gums, accounting, final As to the BIC mis- remanded to and the case is opinion. our made no decision reads We proceedings further any court for district or allocation of than wools other opinion. conformity with joint in spe- thereon 70 tons on the cifically venture. We open left the issue whether Rehearing. the ultimate settlement On Petition for for 150 tons or $1.25 $115,000. of which PER CURIAM. ac- cepted. alleged Thus, the inconsistencies rehearing Nothing petition opin- petition in the no basis our original persuades us our decision ion. originally in error. Both rehearing, petition we have care- counter-claim, As to fully support dis- considered the for the persuasive why presented has reason findings, both trict court’s tentative this issue should not reconsidered nothing petition final, we see light court in of all other require or elsewhere to modification findings. very Admittedly, it is unusual of our decision. party the admission of a treat as less conclusive, than see no we reason modify However, opinion do our we why should not be done as a matter Upon fifth cause of action. as to the extraordinary of discretion in the cir record, consideration further justice requires cumstance where it. note that BIC did learn the returned Nevertheless, rehearing denied; opin- before trial. we see check nothing Petition analy- fact to disturb our ion amended as indicated.