United States v. Curtiss Aeroplane Co.
147 F.2d 639
2d Cir.
1945
Check Treatment

*1 CURTISS AERO UNITED STATES v. PLANE et al. CO.

No. 24. Appeals, Second Circuit.

Circuit Court

Jan.

Rеhearing Feb. Denied C., Washington, D. Sweeney, of Paul A. Shea, Atty. Gen., Asst. M. Francis Sandomire, Sack, Alexander N. Daniel M. Sp. Atty. Jayson, Assts. to the S. Lester

Gen., appellant. counsel), Spence and M. Soia Mentschi- Kenneth ‍‌​‌‌‌​‌‌‌​​‌‌‌​​‌​​‌​​​​​‌​‌‌‌​​​​​​‌‌​​‌​‌‌​​‌​‍koff, City (Spence, of New York Windels, Walser, Angelí, Hotchkiss & City, counsel), appellee. CHASE, CLARK, HAND, Before L. Judges. Circuit HAND, Judge. L. Circuit appeals plaintiff from a summary complaint, dismissing its judgment the Statute of Limita- The facts are follows: Between tions. February September Imperial Russian Government made corpora- written contracts with a seven Aeroplane known the Curtiss Com- pany, delivery the manufacture and boats,” forty-eight “K and two trans- “flying boats.” other (The atlantic de- fendants succeeded to the liabilities *2 640 hut Company, expira- Aeroplane years of five following the of the Curtiss them, and tion disregard such year period.” simplicity shаll two Curtiss the dispose the case The Government, Soviet as successor only defend- Company the Aeroplane were rights to all Imperial, and of the delivered Company ant.) Curtiss Provisional, JGovernments, assigned all sev the end before forty-eight “K boats” the en causes of action to the United States of cer- exception 1915, July, the with 16, as of 1933, November and the United which it parts, spare tain accessоries 9, States April commenced this action and October shipped September 30th Sep 1941. The defendants answered on “transatlantic year. The two 12th of 15, pleading tember the Statute of Limi April factory on its shipped from boats” it tations; 5, 1942, they and on October arrived, the “K boats” 1, After summary dismissing moved judgment defective, they were buyer asserted complaint, by as barred section 48 of Company failed Curtiss and that the Prаctice Both York Civil Act. the sides their as to comply its warranties 16, 1933, agree November after 1915, 3, it asked August performance. On recognized and ac the Soviet Government motors, replace company passports corded “full honor in Russia to do, was unable company tried * * * by issued United States ports freezing northern to before the desiring to citizens travel Rus American only open at the ones (those being the ordinary sia in connection with commer 7, March time, war). On because of ‍‌​‌‌‌​‌‌‌​​‌‌‌​​‌​​‌​​​​​‌​‌‌‌​​​​​​‌‌​​‌​‌‌​​‌​‍.enterprises.” We understand that the cial company’s local buyer told defendants that after Novem also representative Petrograd that it meant 16, 1933, against plain ber ran no time sue; gave notice to April 29th it and on tiff; event, is no doubt about premises! “K boats” from remove it, only question open ap and the on this negotiа- there were various Thereafter tions peal day is whether on that the statute was through the summer settlement a bar to an action the Provisional Gov 1916; had been con- nothing fall of ernment in country. Imperial Government was cluded when the meaning of the contract of March; 1917, by the Provi- succeeded 15, 1922, plain; Government, sional, Kerensky, which in supported by statute was to buyer’s gave place to its turn the Soviеts forbear, per which it known, following As is November. well answer, The defendants formed. how recognize United continued States ever, the seller’s was irivalid Government, and its am- the Provisional New York—which law of ev Bakhmeteff, bassador, on March eryone agrees controlling promise —does entered into contract allow not to important Company, parts “pub Statute Limitations: is the follows: policy” lic that stаte that actions shall shall “1. Russia not commence an ac- brought periods prescribed; within the against Company tion and the Com- promisors expose are not allowed present pany against a claim shall not Rus- longer themselves to the hazards which expiration sia (2) until after two delays stipula will entail. When such a

years the Government of Russia rec- part very tion is made ognizes and accords full honor Russia arises, obligation out of there are passports issued the Government of indeed decisions in New York—as there the United States to American citizens de- jurisdictions support are in other —which siring to travel in Russia in connection Ireland, position. App. that Div. iewski, Crocker v. 235 ordinary enterprises. commercial 638; Pine Okon ****** 3; 256 11 N.Y.S.2d expira- “2. In event that after the Mutual Life Insurance Co. United year period such two Co., Russia shall Hotel Misc. States N.Y.S. against commence an action Moreover, the Company foregoing Company present or the against shall only point claim decisions actual Russia, defending party found, to such we have Nation Watertown action or shall not up claim Bagley, set as al Bank part as a 592; a defense statute or limi- N.Y.S. St. Andrews Parish v. Galla tations of time intervening gher, 590; be- Misc. tween Anglo Klеin, end of California Nat. Bank forced promisee will be 191; Goro N.Y.S. Misc. once, - which is to sue at -, Blumenstein, 53 N. Misc. wítz protection primarily promisor’s as to have appears Y.S.2d Sheldon, (State Vt. Trust Co. v. state; law of is the sumed undoing. 177), may prove his A. *3 purposes the assume too shall as we promisee may too have an interest the basis, the as a that With discussion. of think that delay, may further he also no distinc argue there is thаt defendants promisor pay to later. the be able better original stipulation the a tion between Thus, “public may whatever be said for contract, up based a and in contract stipulation policy” forbids such a At first independent consideration. contract, certainly original in the is there true, scrutiny but on may seem blush this a valid it and a later between distinction Any exten emerge. do valid distinctions contract. in limitаtion is period of sion alone, promisee when the terest of “public nothing is in the There is one due date made: is first contract policy” statute, New York accelerated, that to be may wish thing, he decisions, support notion to that thereafter, longer wait he can writing, a least it is in most opportunity choose greater his to is invalid. York Section 59 the New collect. That is a one- propitious to Civil Practice enacts the Act common-law argued advantage, and it can be sided pay doctrine that a a debt or its to power prom of the be should not it acknowledgment, whether or it al is extension, limited even a to isee exact ready barred, an actionable obli creates apt is to be an in since borrower gation, adds condition that it position. That was the ferior economic writing. it be in can think of must no Steinfeld, 34 of Forbach Ariz. rationale why promisor permitted reason should be First National Bank ‍‌​‌‌‌​‌‌‌​​‌‌‌​​‌​​‌​​​​​‌​‌‌‌​​​​​​‌‌​​‌​‌‌​​‌​‍v. 273 6 and P. so to extend the limitation Mock, 70 Colo. P. A.L against himself, and even to revive a 383, 391; debt, 770. See also Col.L.R. apply .R. which does not equal agreement 593. Courts have divid force to validate Harv.L.R. plead to the statute. if a condi question, however, ed even when acknowledgment tional enough, thеre promise is for a and reason definite all; and, be difference at al extension; though probably it in is able though, said, just probably as we jurisdictions, most ex valid in enough, question there is some even Williston, indeterminate. tension is § Metz, as that. Van to Schaick v. may, as the as it of limita Be this App.Div. example, 279 N.Y.S. end, approaches its situation acknowledgment court held an to be change, and it altogether may be likely to 59, though under valid section was noth the interest of the to be come to ing to more than make a contract not able below statute. relied The court may be him vital the statute. Supervisors of Madi Woods Board time; judg be sued at shall not County, N.Y. 32 N.E. son may ruinous. And even be true also that the acknowl and was continued, the case is promisee sties and edgment not unconditional —at least in pendency may preju of the the mere suit insist, amount. defendants Moreover, is hard why, to see him. dice agreed, contrary judge these cases are may long continue the suit parties York, general doctrine in New choose, they should they be forbidden right. Connecticut Trust perhaps shall be served. that no writ So Wead, 65 N.E. D. Co. & S. “public policy” of far as the the statute 756; Am.St.Rep. Stamm, Zinn v. depends upon staleness evidence 737; Lincoln- trial, еventual there is differ Fisher, Bank Tr. Co. v. Alliance & between the two ence whatever courses. 722; Povill, In re escape ‍‌​‌‌‌​‌‌‌​​‌‌‌​​‌​​‌​​​​​‌​‌‌‌​​​​​​‌‌​​‌​‌‌​​‌​‍say prom it an that the Nor is 59). Cir., (construing 105 F.2d 157 § debt; always acknowledge isor can so, assuming the acknowl Even merits, may it on the unconditional, wish contest to dis edgment must be acknowledgment probably his tinguish it and between — as elsewhere —must nothing unconditional. statute adds promisee he and the protection. Unless can make If he can abandon all regard Shapley’s defenses, how Abbott’s including reliance power promise “prom- help deprive consideration him does issory estoppel” (Restatement of Contracts to abandon the defence 90), this back to but we not read § statutes Finally, it alone? cannot for the degree are in limitation the trial of purpose relieving courts therefore find Judge could The Chief hard decide issues which have' become support Shapley but nothing on which to are main- loss Courts of evidence. “estoppel,” and the possibility par- disputes, however tained to settle greater far opinion by rest — themselves; it would may ties embroil question. part a discussion —was people forbad strange doctrine which classic sense: “Estoppel” he defined *4 wish, lest as deal their affairs i.e., existing fact on which of statement unduly As vexed. res judges should be accounting After party relied. other have integra, we should therefore performance specific of contracts for the valid; and we will contract was “fraud,” as of sale land cases for the of York deci- to the New address ourselves of a of mentioning power and sions. plead usury, or the his own accord not Abbott, Frauds, Limi- or the Shapley Am. Statute Statute In execution, tations, exemption an from Shapley a Abbott Rep. held note of years, he “but no case has occurred nearly six concluded: had due which been can, advance, party lawyers, in in of which to me which a a firm of but he owed member, promise that a statute found- for a bill make a valid was a of costs. Abbott inoperative.” public policy in shall costs he offered to ed The of these balance 452, Am.Rep. page 548. The let off 42 N.Y. at pay, if Abbott would him set obscure; advance,” refused, phrase, “in a little because the note. Abbott costs but, firm; promise him but includes a made at it belonged and not barred, and if the replied time before the claim Shapley then the note would setting, soon, pos- broken its something language is from and “outlaw posi- gives to the defendаnts’ sibly it color it.” To this done about answered: Abbott tion; gratuitous it would still plead he would the note did outlaw “if it,” having bearing on the actual on statement limitations and reli- dictum, promise decision. But even discus- Shapley this the stat- let authorities which followed utory period expire. Ap- The sion Court of Earl, J., upheld that it should not be so read. The peals by plea shows C. Abbott’s Judge two Maine First, de- Judge the Chief Chief first considered of the statute. that, said Walker, Me. promise good Warren v. Abbott’s was a cisions: Chase, 47; Id., Hodgdon Me. “acknowledgment” of the debt and and these, first of on eve before the In the have tolled statute then Me. 169. re- promisee’s amendment, yet, expiration of the oral, since been cent Second, writing declared: sue, promisor had was invalid. he said al- * * * hereby defence un- though Shapley “I waive all acted faith limitа- by statute of promise, virtue the tion, there had been no considera- der and thought this insufficient The court Shapley ‍‌​‌‌‌​‌‌‌​​‌‌‌​​‌​​‌​​​​​‌​‌‌‌​​​​​​‌‌​​‌​‌‌​​‌​‍“did not tion.” acknowledgment, but permit he would wait as a new defendant statute, bar of to the good to outlaw. answer rely the note could hé Neither implied promise not to place was what then because took as a waiver it, plead supported by a consideration. The limitations, defеndant statute Judge distin- Chief ground on which up- because there was no consideration case, was all fours which guished waiver. The on hold the -defendant did not bar, particularly sig- at was right statute, case then we are consid- “Unlike this was mere nificant. case most to waive to have promisor was held page ering,” Am.Rep. it.” N.Y. at bound, because “there was a consideration statement That was accord with the lаw agreement.” (Italics in the seventy-five years proved ago; consideration Shapley promised and third forbear, had not the second deci- original.) nor. oral, agreement had been was Abbott’s sions the stat- ground of decision. exchange ute was the Shapley’s made for- decisions, Judge these Our theories discussed bearance. of consideration Chief them, disapprove changed, appears, to today have now and we should so far consideration, Maine, apparently next case them. distinguish etc., accepted President, good it as law that it was valid. discussed was Webber Sutherland, Pick., Mass., who also wrote an College, 23 Williams Justice opinion, put squarely himself Judge on Sel- upheld agree Shaw Chief where Justice opinion Lockwood, den’s in Crawford v. year for a plead the statute Prac., N.Y., 547, 550, How. waiver “that is a ground exemption dealt awith waiver of contained This result limitations.” statute of negotiable in a note. His also discussion explained ground of Chief turned “estoppel,” as a mis- put viewed objected to acknowledgment; he statement of fact. ground “waiver.” If ting it on written contract he meant Shap examined decision invalid, it was the statute was Abbott, supra, ley N.Y. Am. way complete contradiction Rep. length, the sheet just treated the law Maine. he had anchor of defense in the case at bar. Insurance Co. case Utica The next appears It from what have said N.Y., 652; Wend., case Bloodgood, 4 support them, certainly does not in de subsequent written involved a also cision, properly not in un dictum plead the agreement not validity derstood. left untouched the *5 ground of “es sustained which was upon aof later written founded disapproved all toppel.” Judge The Chief good consideration, promisor upon “estoppel,” put the result talk of and promised plead the not to statute acknowledgment of the debt. a sufficient time. limited Several times since then New Again, best left doubt entire upheld agreements such we courts have disap go farther than to upon that he theory meant to “estoppel”; the discredited Gaylord “estoppel.” prove v. Van enough, In curiously of them none mention 308, Wend., Loan, N.Y., the next case Shapley Abbott, supra, 447, promisor you had said: up, Am.Rep. “If Verrault, he took In Hobart v. I prove you anything, pay you.” 444, 483, owe I promisor 77 N.Y.S. against had run This after statute was had good written that a note should not be notes; and court held death; two that till her majority after held that promisor’s prom statement was not a “estopped” this her executor. The intent pay notes, seems, however, statute ise within the to to have been that it was might “estopped” payment be as to the he third the suspended, that was to that not more, it was at this note. Once use of promise any action it be “estoppel” Judge that the Chief winced. any due. The is came decision event any wrong The case view bеcause to difficult understand. In Andrews v. Cos no prom Bank, consideration for the mopolitan App.Div. 787, there was 171 N. promise, sense that considera isor’s Y.S. a mere resolution then understood. The case he was last of directors board “waived” the stat Metcalf, ute; discussed was Brookman N. given; reason was no authori Y.Super.Ct. Sanford, 4 Rob. where ties re cited. In 95 Misc. promisor agreed if had that Estate, endorseеs and In N.Y.S. re Williams’ suspend promisee bringing would ac both on “es Misc. went tion, by a an toppel.” spite especial he would abide decision in In deference pending: then give other case “influenced to which we decision plaintiffs offer, delayed bringing law, state state courts we should action”; and held suppose ought an this was to an to hardly prefer we “equitable estoppel, estoppel pais.” authority Shapley body Abbott, oral, the Chief Am.Rep. 548, wsa supra, N.Y. so far as been, thought it had have if not seems to are not conflict it. We forced acknowledg however, been a sufficient upon them, have depend for Water 455, Am.Rep. page Bagley, N.Y. at (42 supra, Bank town National ; 548) disapproval only apparently was and Goro - writing. Blumenstcin, supra -, had been Thus because it not witz Misc. throughout appeared only flatly it was decided that 53 N.Y.S.2d “prom second, notion what now call are valid. we such contracts estoppel” any quarrel; J., analyzed had all issory Shientag, the authorities promise sup little, anything, there was and left more be said. that when if ported by regarded distinguish was his deci- what then as valid The defendants seek to G44 usually does, controversy an as to go honest preferred-to sion, right was whether of аction that, although,

ground in- If there contract was made. promises controversy was bar— invalid, prom- such a in the case at time, may definite certainly ex- basis— reasonable be construed him could ise before promisee was forbearance con- only reasonable for a tending the sideration, regardless whether the action exceeded. promisee time, actually We will validity an had barred or not. his doubt as to We share finally extension; however, question is a decide indefinite now; indeed, appeal should not lay in bar. we the case which we need not summary judgment. perhaps It is from suspension in the of 1922, scarcely unrea- it seems more by no means was conceivable — planes’ perform- —that on one’ could issue of the sonable. The honestly chiefly by reasonably believed likely be dеcided was already the five certainly actions barred. testimony; Russian open prove We leave it prepare the defendants to expected to Company could not be so, if they sending agents can. without trial country, freedom should entire who reply discussed another We have correspondence while there. the defense. plaintiff- makes it was preceding contract shows though wе were hold says even It compa- particular insistence statute inserted; provision ny that this was nevertheless, invalid, was years too say was short a cannot two Government forbear the Provisional prepare trial within which aft- was bringing the statute while it tolled suit open. er course true Russia *6 being time so out in force. The taken controversy has now become in- counted, the was not-barred on No- action stale; credibly carry we must ourselves already if it had not been vember action back could not be con- barred on March 1922. Since the recognized until tried at all we the Soviets: respect siderations control with did, they have all the evi- would essentially that defense are same dence, Company discussed, sep- already those we have greatly handicapped to rebut it. That com- necessary. arate discussion pany grace complain can little now reversed; cause remanded for Judgment it then that the forbearance procured was on the merits. trial unnecessary unreasonable, 'when prep- alone it will be enabled make such Rehearing. Petition for On passage aration time still leaves open. Finally, although the flifficulties PER CURIAM. mounted, prodigiously probable they pass mountеd did mean sides, plaintiff has burden of the contracts for whether claims proof. were, already “K were boats” 15, 1922; pass up or to March barred on isNor point there merit day the contract of re on whether suits on the contracts for the “K already them, they if barred. vived already boats” had been barred before they that if were barred All we decided was place upon 1922. In March the first intended and that to revive if summary judgment motion we cannot them, Upon there was consideration. rights tell the five action accrued. open trial we leave whether these probably difference, But it would make no barred, effect, any, claims were what if they appeared had accrued the contract of 1916. While it will before them, were. We times be true has in action District those issues involve barred, promisee’s fact forbear become questions of fact which should not de not be consideration for summary motion cided judgment. denied. remains, Petition is not the case when there