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Fisco Intern. Corp. v. Blumenfrucht

Supreme Court of New York, Appellate Division

February 2, 1954

FISCO INTERNATIONAL CORPORATION, Appellant,
v.
LOBEL BLUMENFRUCHT, Respondent.

Page 266

APPEAL from a judgment of the Supreme Court in favor of defendant, entered November 21, 1952, in New York County upon a verdict rendered at a Trial Term (STEUER, J.).

COUNSEL

William E. Friedman of counsel (Baer, Marks, Friedman, Berliner & Klein, attorneys), for appellant.

Irving A. Thau of counsel (Jacob D. Fuchsberg with him on the brief; Jacob D. Fuchsberg, attorney), for respondent.

BERGAN, J.

Defendant Blumenfrucht is a Belgian dealer in coffee, sugar and spices and has been in that business twenty-eight years. His place of business is in Brussels. Plaintiff corporation is a New York importer. In November and December, 1951, plaintiff bought 12,000 bags of coffee from defendant for $783,900 to be shipped from Holland.

A dispute arose between the parties over the quality of the coffee furnished by defendant under the agreement. Litigation began, instituted separately, one party against the other. On February 15, 1952, plaintiff instituted an action in the New York Supreme Court against defendant for $120,000 for breach of contract, although the agreement between the parties on the sale of coffee provided that 'all claims' were to be settled 'by friendly arbitration in Belgium.'

Three days later the defendant instituted an action against plaintiff and against the Credit Suisse which had issued a letter of credit at the instance of defendant payable to plaintiff under certain contingencies in connection with the coffee shipments. An order to show cause on an application for a temporary injunction restraining the payment of the letter of credit to plaintiff was obtained by defendant's lawyer February 18th, and was returnable at Special Term February 21st. The order contained a temporary stay restraining payment pursuant to the letter of credit.

After the argument of the motion, and on the same day, the defendant and plaintiff's president Fischer and their lawyers had what defendant's brief here describes as a conference with 'considerable discussion * * * which sought to explore the possibilities of settling the dispute between the plaintiff and defendant' but which did not reach a settlement.

Page 267

Three days later, on Sunday, February 24th, the parties met without their attorneys in the home of plaintiff's president Fischer and undertook to settle their differences directly. They wrote down their composition of terms in German which Fischer translated into a document in English which both parties signed.

The document recited that the outstanding claims 'will be settled' by defendant paying plaintiff $18,000; by defendant delivering to plaintiff 4,000 additional bags of coffee at $57 per 50 Kilos CIF New York; by delivery from defendant to plaintiff of bills of lading of 'all the coffee sold' to the plaintiff; by the delivery by plaintiff to defendant of 'the official documents relating to the sampling of the coffees' sent by a certain ship and sold to plaintiff.

Defendant did not pay the $18,000 and did not deliver the additional 4,000 bags of coffee, and this action is maintained by plaintiff for $28,560 for breach of the written agreement of settlement. Defendant claimed the agreement of settlement was induced by fraud and after a trial the jury found in his favor. We are of opinion the verdict is against the weight of credible evidence.

Various reasons have been advanced by defendant in the course of this litigation why he should not be bound by the document he signed. His answer alleged, among other things, that he was 'under the influence of spiritous wines and liquors' when he signed the instrument; there is a suggestion in his testimony that the original instrument in German carried out defendant's intent, but that the English translation which he signed did not reflect the German text and the inference left by defendant's testimony is that he did not quite fully understand the English text, and the English text omitted certain revisions that the German text had embodied. The claim of ...


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