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MURARKA v. BACHRACK BROS.

April 10, 1953

MURARKA et al.
v.
BACHRACK BROS., Inc.



The opinion of the court was delivered by: MURPHY

This action for breach of contract for the sale of goods was dismissed by this court without prejudice for lack of proof of plaintiffs' citizenship. Murarka v. Bachrack Bros., Inc., D.C., 108 F.Supp. 597. Plaintiffs' motion to reopen the case upon the sole issue of jurisdiction was granted on December 29, 1952. Additional testimony was taken and further evidence received. At this time plaintiffs moved to amend that paragraph of their complaint which reads, 'That each plaintiff is an alien and subject of Great Britain,' so as to state 'that each plaintiff is an alien and British Indian citizen and a subject of Great Britain.' Accordingly, the court makes the following

Findings of Fact.

 1. Plaintiffs were at all times mentioned in the complaint and at the time of commencement of this action, partners, doing business as a general partnership in Delhi, India, under the name and style of Fatehchand Madangopol, and each plaintiff was an alien, British Indian citizen and subject of Great Britain.

 2. At the time the complaint was filed the Government of India was an interim one recognized as such by the United States with an ambassador to Washington whose credentials were signed By His Majesty, King George the Sixth of the United Kingdom.

 3. Defendant was at all time mentioned in the complaint and at the time of commencement of this action, a domestic corporation incorporated under the laws of the State of New York.

 4. The amount in controversy exceeds $ 3,000, exclusive of interest and costs.

 5. By written contract dated December 23, 1946, defendant agreed to sell to plaintiffs 10,000 new cargo rayon parachutes, 24 panels with cords, at a price of $ 7 each, plus 5 percent commission for plaintiffs' agent, making the total price $ 7.35 each. The agreement provided that irrevocable letters of credit were to be opened in favor of defendant and that the merchandise was to be sold for net cash, F.A.S. New York, delivery at once on receipt of the irrevocable letters of credit.

 6. A subsidiary agreement was entered into shortly thereafter by plaintiffs' agent under which he deposited $ 5,000 with defendant, payable to defendant as liquidated damages in the event the letters of credit did not arrive prior to January 15, 1947.

 7. On or about January 7, 1947, plaintiffs duly opened in favor of defendant irrevocable letters of credit expiring on February 10, 1947, for a total sum of $ 94,000. Defendant returned the $ 5,000 deposited by plaintiffs' agent.

 8. On February 5, 1947, defendant notified plaintiffs by cable that defendant had 'Booked Space Steel Advocate Sailing 15th. Extend Letters of Credit 30 Days'.

 9. Prior to receipt of defendant's request for such extension, plaintiffs applied for extension of such letters to February 28, 1947. Such application was made on February 3, 1947, in India.

 10. On February 17, 1947, defendant duly acknowledged receipt of the extension of the letters of credit to February 28.

 11. Although this extension was one for only 18 days and not for the requested 30 days, defendant accepted it and also agreed to ship the 10,000 parachutes on the S.S. 'Steel Director' which was scheduled to sail from New York on February 24, 1947.

 12. At the time of making the contract of sale, defendant had title to 10,000 new rayon parachutes described in the agreement but these were in a government warehouse ...


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