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MOTTAGHI v. BARKEY IMPORTING CO.

September 7, 1955

M. Shafi IRAVANI MOTTAGHI, Plaintiff,
v.
BARKEY IMPORTING CO., Inc., Defendant



The opinion of the court was delivered by: NOONAN

The trial of this action was commenced on October 4, 1954. At that time, a jury having been demanded, the jury was duly empaneled and sworn, and the trial proceeded before it for over two weeks.

On October 19, 1954, however, because of certain remarks made by several of the jurors and brought to the attention of the court, the jury, at the request of counsel, was then dismissed. The trial was continued before the court, without a jury, pursuant to a stipulation to that effect dictated on the record at that time by the attorneys and to which they orally agreed in open court. Further, it was then stipulated that all of the proceedings had up to that point were to be deemed had before the court without a jury.

Upon the conclusion of the trial, the submission of briefs, reply briefs and analytical computations by both parties herein, and a detailed analysis of all of the arguments and evidence in the case, this court hereby renders the following opinion in lieu of more formal Findings of Fact and Conclusions of Law.

 The opinion is a lengthy one because of the complexity of the case and the volume of the evidence. Since the multitude of exhibits in evidence and much of the testimony serves to indicate background and business methods as well as individual commitments by the writers thereof, much of the testimony and many of the exhibits are quoted in the opinion.

 Prior to the start of the trial itself the plaintiff herein had thrice altered his complaint, so that the complaint which was the basis for this trial differed considerably from his original complaint.

 This court normally would not find it necessary in the writing of its decision to comment upon the amendments to a pleading; we do so now, however, because the defendant has made it abundantly clear throughout the trial and at great length in all of its briefs that it believes that the amendments constitute evidence of bad faith or worse on the part of the plaintiff. It is the opinion of this court that those amendments signify nothing of the sort. The unusually complex and multitudinous series of transactions that gave rise to this lawsuit are a sufficient cause for the complications that arose in the pleadings.

 Without going into the details of the complaint as finally amended, it will suffice for now to state that this suit is brought primarily for the alleged breach of certain contracts, and that the entire suit is broken down into ten causes of action by the plaintiff and two causes of action by the defendant by way of a counter-claim.

 This court has jurisdiction over the controversy by reason of diversity of citizenship between the parties, since the plaintiff was and is a citizen and subject of the Kingdom of Iran, and the defendant was and is a corporation organized and existing by virtue of the laws of the State of New York, and was and is doing business in the County, City and State of New York, during all of the times pertinent to this action. The amount in controversy is well in excess of $ 3,000 exclusive of interest and costs.

 Since the jurisdiction of this court rests on diversity of citizenship, the law of the State of New York will apply to this action to the same extent as it would if the suit were tried in a New York state court.

 The action arises out of certain transactions in carpet wool between the plaintiff, an importer and exporter of divers commodities who maintained his place of business in Teheran, Iran, and the defendant, a New York corporation, whose president, Jacob A. Barkey had been engaged in the import, purchase, and sale of carpet wool for a considerable period of time in New York City.

 Although the plaintiff had previously done business on a large scale, the transactions that gave rise to this controversy were his first efforts in the export of wool.

 Two others of the more important dramatis personae in the earlier causes of action in this case were one Randolph Valensi (also known as 'Randy'), an agent of the plaintiff, and one Robert N. Kitching, formerly an agent and employee of the defendant corporation, and now deceased.

 During a portion of the period in which th transactions herein involved were pending, Kitching, as Barkey's agent, went to and stayed in Teheran to consult with and advise Iravani.

 Valensi was engaged in the City of New York in the business of acting as a broker or agent for various exporters of wool and other commodities to the United States; one of his clients was the plaintiff, Iravani.

 Among the occasions wherein Valensi acted as Iravani's agent, were those involving his transactions with Barkey.

 Among other of Valensi's duties with respect to his association with Iravani were the following: the making of agreements for the sale of Iranian carpet wool to be exported by Iravani, receiving pro forma or tentative as well as final statements of account in connection with the shipment of these wools to the defendant, receiving payments from the defendant for the wools so shipped, and communicating the oral and written communications of the parties to each other.

 At all times during the negotiations that led to this suit, there was a general custom in the use of certain terms in the business of exporting and importing wool that was well known to and understood by both the plaintiff and the defendant. The terms hereinbelow set forth were understood by the parties and are intended by the court to have the following respective meanings:

 (1) 'Greasy wool' is wool that, at the time of its shipment to the United States, has not been washed or cleaned, and, therefore, is wool that contains a considerable quantity of impurities such as grease and dirt.

 (2) 'Washed wool' is a wool that, before its shipment to the United States, has had some portion of its impurities removed by washing, but not by any process of cleaning. Wool is considered washed when the sheep from which it will be shorn have been driven through a stream.

 (3) 'Clean wool' is a greasy or washed wool that, after its arrival in the United States, has been scoured and cleansed of all impurities that were pressent in the wool when shipped to the United States.

 (4) 'Net lb. clean basis', or 'clean basis', means that payment for wool is to be calculated on each pound of wool that is actually yielded by the wool when, in the United States, it is transformed into clean wool as described above.

 (5) 'Cream wool' is wool that is not white but is a light gray in color. It is also referred to as 'second white wool' or 'No. 2 white wool'.

 (6) 'Colored wool' is wool that is neither white nor cream white, but of dark color, such as black or brown.

 On about December 8, 1949, in the City of New York, the plaintiff, through Mr. Valensi, and the defendant, through Jacob Barkey, entered into an agreement in writing, dated December 8, 1949, and accepted by Barkey on December 9, 1949, wherein the plaintiff agreed to sell and deliver to the defendant, and the defendant agreed to buy and accept from the plaintiff, about 350 tons of Iranian carpet wools, of Meshed white quality, each ton of 2,240 pounds net, consisting of 300 tons of greasy white wool and 50 tons of washed white wool at 60 cents (U.S. currency) per net pound clean basis. (Plaintiff's Exh. 1).

 That contract, dated December 8, 1949, provided among other things as follows:

 'Yields: Seller's estimate of yields as follows:

 In the grease: Fifty Two Percent (52%)

 Washed: Seventy Two Percent (72%)'.

 'Shipment: From Khorramshahr, Iran, or other Iranian port direct to Port of New York, U.S.A. not later than February 15, 1950; partial shipments permitted.'

 In February, 1950, the above contract was verbally modified by the plaintiff and the defendant to provide for the shipment thereunder by the plaintiff to the defendant of 40 tons of greasy cream Iranian carpet wool, in lieu of the 50 tons of washed white wools originally therein agreed to be shipped by the plaintiff to the defendant. This contract, as so modified, is hereinafter called the 'First Written Contract'. This modification did not change the price for white wool set forth in the earlier agreement.

 About April 17, 1950, in the City of New York, the plaintiff, through Mr. Valensi, and the defendant, through Jacob Barkey, entered into an agreement in writing dated April 17, 1950, and accepted by Barkey on April 19, 1950, wherein the plaintiff agreed to sell and deliver to the defendant, and the defendant agreed to buy and accept from the plaintiff, 300 tons of Iranian carpet wools, of strictly white quality, each ton of 2,240 pounds net, consisting of 200 tons of greasy wool and 100 tons of washed wool, at 70 cents (U.S. Currency) per net pound clean basis. This contract is hereinafter called the 'Second Written Contract'. (Plaintiff's Exh. 25).

 The Second Written Contract provided, among other things, as follows:

 'Yields: Seller's estimate of yields as follows:

 In the grease: Fifty Percent (50%)

 Washed: Eighty Percent (80%)'.

 'Shipment: From Khorramshahr, Iran, or other Iranian port direct to Port of New York, U.S.A. not later than June 30, 1950; partial shipment permitted.'

 About April 21, 1950, in the City of New York, the plaintiff, through Mr. Valensi, and the defendant, through Jacob Barkey, entered into an agreement in writing dated April 21, 1950, and accepted by Barkey on April 25, 1950, wherein the plaintiff agreed to sell and deliver to the defendant, and the defendant agreed to buy and accept from the plaintiff, 100 tons of Iranian carpet wool, of second white quality, called 'cream' per sample, each ton of 2,240 pounds net in the grease, at 60 cents (U.S. currency) per net pound clean basis. This contract is hereinafter called the 'Third Written Contract'. (Plaintiff's Exh. 27).

 The Third Written Contract provided, among other things, as follows:

 'Yields: Seller's estimate of yield -- Fifty Percent (50%)'.

 'Shipment: From Khorramshahr, Iran, or other Iranian port direct to Port of New York, U.S.A. not later than June 30, 1950; partial shipments permitted.'

 About June 30, 1950, the plaintiff and the defendant, through its agent, Robert N. Kitching, entered into an agreement in writing, in the City of Teheran, Iran, dated June 30, 1950, wherein the defendant provisionally agreed to buy and accept from the plaintiff, and the plaintiff provisionally agreed to sell and deliver to the defendant 400 tons of Iranian greasy wool, consisting of two hundred (200) tons greasy white and two hundred (200) tons greasy cream, metric ton weight; this contract is hereinafter called the 'Fourth Written Contract'. (Plaintiff's Exh. 49).

 The Fourth Written Contract contained among others, the following provisions:

 'Price: Prices are cost and freight New York, clean basis, net shipping weights. White at eighty-five (85) cents per pound. Cream at seventy-five (75) cents per pound.'

 'Shipment: During July/August from Iran'.

 The Fourth Written Contract also contained certain other express provisos, to wit:

 'Remarks: As mentioned above, this sale is contingent upon you completing your present outstanding contracts to us and credit for this purchase will not be opened until this condition has been met.'

 (The 'credit' referred to a letter of credit).

 'The matter of the amount of the letter of credit, whether 80% or 90%, will be discussed with Mr. Valensi and the amount which is finally agreed upon will then become one of the terms of this contract.'

 These four formal written contracts constitute the clearest of the agreements between the parties and form at least the basis for most of the causes of action herein. Up to this point, there is little controversy as to what these contracts say or mean.

 At this juncture, the court wishes to point out that, on the basis of the printed record in this case, both the plaintiff and the president of the defendant-corporation have made inconsistent statements. Accordingly, in reaching a decision, this court must rely to a relatively greater degree on the documentary evidence introduced at the trial, and on that testimony of the witnesses which is hostile to their own interests.

 We turn now to the specific causes of action.

 First Cause of Action

 The plaintiff's first cause of action is based on an alleged amendment of the First Written Contract as referred to earlier. The plaintiff asserts that this contract was further modified in August of 1950 by verbal agreement, as indicated by various documentary evidence, to provide for a higher price for certain of the shipments amounting to an additional 10 cents per net pound clean basis. This the defendant denies.

 The shipments on which the plaintiff claims this extra ten cents per net pound clean basis are those which were shipped on the following voyages:

 (1) S.S. Lemsterkerk-Westerdam which arrived in the port of New York on July 17, 1950;

 (2) S.S. Steel Designer, which arrived in the Port of New York on July 20, 1950;

 (3) S.S. Laackerk-Westerdam which arrived in the Port of New York on September

 (4) S.S. Lindekerk-Averdyk which arrived

 (4) S.S. Lindekerk-Averdyk which arrived in the Port of New York on November 4, 1950.

 In examining into the alleged contract modifications, the following evidence, is in the record:

 (1-1) The contract of December 8, 1949, required shipment 'not later than February 15, 1950;. (Plaintiff's Exh. 1).

 (1-2) A Latter of Credit was issued on December 12, 1949, pursuant to the abovementioned contract and specified the price at '60 cents per net lb. clean basis.' It was numbered #82037, and, to procure payment upon it, the plaintiff was required to produce, among other papers, on board ocean bills of lading which 'must be dated on or before February 15, 1950'. (Plaintiff's Exh. 60).

 (1-3) References in several communications from Barkey establish that Iravani was authorized to ship colored wool as well as the wool specifically covered by the contract. For example, the radiogram dated April 8, 1950, from Barkey to Kitching contained the following excerpt:

 'Colors Prices Entirely Unworkable Mills Seldom Buying Colors Stop If Iravani Cannot Sell Locally Suggest Consigning Will Make Moderate Advances And Do Best Dispose'. (Plaintiff's Exh. 20).

 (1-4) Letter dated January 15, 1950, from Iravani to Valensi containing the following paragraph:

 'We received your cable of January 13th wherein you urge us to ship the totality of this wool contract by early February. Since as stated, this is our first order from you and we are taking pains to make sure that the right goods are shipped, we are afraid that we will be unable to effect shipment within the required time.' (parenthesis supplied) (Plaintiff's Exh. 8).

 (1-5) Letter dated February 15, 1950, from Kitching to Barkey opens with the following sentence:

 'I confirm telephone conversation had with Mr. Jack Barkey yesterday and from same I understand that you are extending letter of credit in favor of Iravani for an additional 60 days.' (Plaintiff's Exh. 9).

 (1-6) Radiogram dated April 7, 1950, from Kitching to Barkey contained the following excerpt:

 'Balance Old Contract Shipment By May Fifteen Extend Credit Accordingly'. (Plaintiff's Exh. 19).

 (1-7) Radiogram dated April 8, 1950, from Barkey to Kitching commences:

 'Yours Sixth Extending Credit.' (Plaintiff's Exh. 20).

 (1-8) A letter dated April 10, 1950, from Valensi to Iravani contained the following paragraph:

 'Credit Extension: We understand that Barkey will proceed to extend the credit until May 15th according to the request which they received from Kitching.' (Plaintiff's Exh. 21).

 (1-9) A letter dated April 20, 1950, from Valensi to Iravani contained the following paragraph:

 'Old Credit: We understand that the old credit covering the first contract for 350 tons has been extended thirty days by Barkey Importing Co., Inc.' (Plaintiff's Exh. 26).

 (1-10) Letter of credit numbered #83287 dated April 24, 1950, which was to cover shipments made pursuant to the Second Written Contract, and provided for payment of 70 cents per net pound clean basis for goods shipped pursuant to the Second Written Contract, contained a provision reading as follows:

 'This credit is not available until credit Number 82037 has been fully utilized.' (Plaintiff's Exh. 61).

 (1-11) A letter dated April 28, 1950, from Kitching to Barkey contained the following excerpt:

 '* * * Iravani has told me that the extension of the first credit had been made until the 30 May * * *'. (Plaintiff's Exh. 28).

 (1-12) A letter dated May 26, 1950, from Kitching to Barkey contained the following quote:

 '* * * it may be necessary to again extend the first credit * * *'. (Plaintiff's Exh. 37).

 (1-13) A letter dated May 31, 1950, from Kitching to Barkey contained the following sentences:

 'Since the Steel Designer is sailing in June this will either necessitate another extension of the credit or it will be necessary to amend the second First of Boston credit to allow him to use that and he will draw on you for whatever he ships on the first credit after expiration.' (Plaintiff's Exh. 38).

 (1-14) Letter dated June 6, 1950, from Valensi to Iravani contained the following sentence:

 'Extension Letters of Credit: In accordance with your request, Barkey Importing Co. will extend the first credit covering the first order until June 30th,' (Plaintiff's Exh. 41).

 (1-15) Various communications between the parties and their agents attest to Iravani's attempt to have the restrictive clause in the Second Letter of Credit removed. (Plaintiff's Exhibits 38, 40, 41, 42, 44 and 45).

 (1-16) Radiogram dated June 19, 1950, from Barkey to Kitching contained the following sentence:

 'Complying Iravani Cable To Randy To Assist Are Deleting Objectionable Clause Second Credit Stop'. (Plaintiff's Exh. 46).

 (1-17) Radiogram dated June 21, 1950, from Kitching to Barkey opened with following words:

 'Yours Nineteenth Received Thanks For Deletion'. (Plaintiff's Exh. 47).

 (1-18) Radiogram dated August 3, 1950, from Valensi to Iravani, began as follows:

 'Kitching Returning Teheran Seventh Stop Intends Returning America Thirteenth Stop Barkey Instructing Kitching Accept All Remainder Unnegotiated Documents Stop Arrange Drawing Open Account as Heretofore Before Kitchings Departure With Understanding Wools Will Be Apportioned Equally Between Two Contracts And You Will Complete Balance Wools First Two Contracts First Available Steamer * * *'. (Defendant's Exh. K1).

  (1-19) Letter dated August 4, 1950, from Valensi to Iravani contained the following paragraphs:

  '* * * However, since Mr. Kitching, upon his return to Teheran intends to remain there until the 13th only, time has become very important. With that thought in mind, we were able to arrange to have Barkey inform Kitching to accept from you, all the unnegotiated documents still outstanding, which cover not only the shipments still afloat, but some of the wools shipped per S.S. Lemsterkerk and in fact a small quantity of wools shipped per S.S. Steel Designer. We cabled you to arrange for drawings on a cash basis as you have done in the past, delivering the documents to Mr. Kitching before his departure. We also were successful in persuading Barkey to permit you to apportion your drawings equally between the two contracts still uncompleted. This in substance will permit you to average your prices.

  'It would now appear that you still owe some 350 to 400 tons under these old contracts and Barkey's willingness to proceed was contingent upon your execution of these balances due under the old contracts by shipping them by the first available steamer for Khorramshah.' (Defendant's Exh. K).

  (1-20) Letter dated August 11, 1950, to Barkey from Kitching contained the following:

  'Iravani is supposed to come over for a talk as soon as he comes home and I will try to get things straightened out with him. At the moment he is talking some junk about averaging all the shipments at 1/4 at 60 cents, 1/4 at 70 cents and 1/2 at the four hundred ton price. He claims that this will help him to average and his loss will not be so great.' (Plaintiff's Exh. 52).

  (1-21) A letter dated August 11, 1950, from Iravani to Valensi explaining his need for a price averaging among the contracts, allowing him to deliver some of the wool called for by the higher priced contracts before requiring him to complete delivery on the first contracts, contains the following paragraph on page 5: 'The request that we now have is that you please request Mr. Barkey to open (sic) the immediately the letter of credit for the last contract of 400 tons, in it's (sic) full amount for which we shall be very grateful. Please assure him that we will only ship to the extent of the quantities we have on contract with him and not more and will only negotiate documents against his Ls› where we have not already drawn on him directly. We hope that you will be able to persuade Mr. Barkey to accept all our shipments on the basis of 25% against the first contract of 350 tons 25% against the second two contracts of 300 and 100 tons and 50% against the last contract of 400 tons

  until we have duly completed all of them.' (Plaintiff's Exh. 53).

  (1-22) Letter dated August 12, 1950, from Kitching to Barkey, contains the following quotation:

  'Iravani has written under date of 11 August, a rather interesting letter to Valensi and I believe that Valensi should let you read it. It is 4 1/2 pages long and covers a lot of ground. I am too tough on him and shouldn't tell him it isn't honest to ship a 70 cents contract when there is still an outstanding contract at 60 cents.' (Plaintiff's Exh. 54).

  (1-23) Letter dated August 28, 1950 from Valensi to Iravani contained, inter alia, a list of concessions made by Barkey to alleviate Iravani's financial difficulties. One of these concessions is spoken of thusly:

  '* * * we have permitted you to invoice material under the several contracts at 60 cents and 70 cents so that you can average your prices, etc., etc.' (Plaintiff's Exh. 55).

  (1-24) Letter, dated August 31, 1950, from Valensi to Iravani (marked Plaintiff's Exh. 57) contained a reference to a letter from Barkey dated August 30, 1950, which letter was enclosed with Valensi's letter in the envelope sent to Iravani; Barkey's letter included the following excerpts:

  'The time limit for the completion of the first two contracts has expired. The expiration on the 400 ton purchase is the end of October. We shall be looking forward anxiously to advices of shipments and in accordance with the concurrence given to Iravani's request, shipments are to be applied one third to the first contract, one third to the second contract, and one third to the third contract * * *'.

  'Of course, in respect to the first two contracts, the time limit has expired and we shall for the purpose of facilitating the completion of the sales just mentioned accept shipments beyond the time limit on the first two purchases.' (Plaintiff's Exh. 58).

  (1-25) Letter dated August 18, 1950, from Valensi to Barkey and countersigned by Barkey, contained the following sentence with reference to colored wools shipped to Barkey by Iravani and held by Barkey for Iravani's account:

  'This will confirm my verbal acceptance on their behalf of your offer of 42 cents per pound, clean basis, for these wools, ex warehouse New York, in bond, for September delivery.' (Plaintiff's Exh. 74).

  (1-26) Radiogram apparently sent August 23, 1950, and received August 24, 1950, from Iravani to Valensi contained the following excerpt:

  'Does Barkey Agree Negotiate Balance Documents Lemsterkerk Designer Lindekerk Against Credit Number 82037 At Sixty Cents Being Average Seventy Cents White Forty Two Cents Colored * * *'. (Plaintiff's Exh. 73).

  (1-27) Radiogram dated August 25, 1950, from Valensi to Iravani contained the following excerpt:

  '* * * Barkey Agrees Negotiation Balance Documents Lemsterkerk, Designer, Lindekerk, Under Credit 82037 If After Presentation Draft Documents Encounter Difficulty Have Bank Melli Cable Firstboston For Instructions * * *'. (Plaintiff's Exh. 73).

  (1-28) Letter dated August 29, 1950, from Valensi to Iravani contained the following paragraph:

  'Old Credit: This will confirm cabled advise to you that Barkey agrees to permit you to negotiate the balance of the documents covering shipments per S.S. Lemsterkerk, Designer, and Lindenkerk under credit No. 82037 in the quantities and at prices of 70 cents for white and and (sic) 42 cents for colored wools so as to make an average price of 60 cents per pound, C. & F., New York, clean basis * * *'. (Plaintiff's Exh. 73). (Parenthesis supplied.)

  The contents of the above quote was confirmed by testimony of Barkey (S.M. p. 768).

  (1-29) Invoice dated December 5, 1950, and rendered, according to Iravani, after receipt of the letter of August 29, 1950 (supra fact #1-28) listed as shipped on the S.S. Lemsterkerk-Westerdam 828 bales. The bales were mixed; that is there were bales of white wool, bales of colored wool, and bales of cream wool. (S.M. pp. 49-50). The price listed for the wool was 60 cents per net 1b. clean basis, with no description of colors of wool. (Plaintiff's Exh. 75).

  (1-30) Account #2 dated October 29, 1950, from Barkey to Iravani, covering shipments on the S.S. Lemsterkerk-Westerdam credited Iravani with 42 cents per net 1b. clean basis for the colored wool, 60 cents per net 1b. clean basis for the #2 white wool, and 60 cents per net 1b. clean basis for white wool. The amount of white wool for which Barkey credited Iravani at the rate of 60 cents per lb. in this shipment was 132,479 net 1bs. in the grease. (Plaintiff's Exh. 76).

  (1-31) Invoice dated July 6, 1950, rendered by Iravani for 130 bales of white wool shipped by Iravani on the Lemsterkerk-Westerdam weighing 43,637 1bs. net in the grease. (Plaintiff's Exh. 96). This shipment is included in the 132,479 1bs. referred to in fact #1-30, but should be deducted from that amount because it forms a part of the second cause of action. (1-32) 132,479 net lbs. of white wool in the shipment - 43,637 net lbs. of white wool in the second cause of action 88,842 net lbs. of white wool in the grease remaining in the first cause of action.

  The yield, estimated in the invoice (plaintiff's Exh. 96) to be 50% turned out to be 49.7%. (Plaintiff's Exh. 76).' Thus 88842 .497 621894 799578 355368 44154.474

  or 44,154.5 net clean lbs. at 10 cents per net clean 1b. over the price credited; this would equal $ 4,415.45 for that part of the wool involved in the first cause of action that was shipped on the S.S. Lemsterkerk-Westerdam.

  (1-33) Invoice dated December 5, 1950, rendered by Iravani for 184 bales of wool at 60 cents per net 1b. clean basis shipped on the S.S. Steel Designer. No description of colors of wool. (Plaintiff's Exh. 77).

  (1-34) Account #3D, dated October 31, 1950, rendered by Barkey to Iravani, covering shipment on the S.S. Steel Designer, credits Iravani with 42 cents per net 1b. clean basis for colored wool, 60 cents per net 1b. clean basis for white wool, and 60 cents per net lb. clean basis for #2 white wool. The white wool, amounted to 16,340 1bs. net in the grease, produced a yield of 50.7% or 8284.4 net clean lbs. (Plaintiff's Exh. 78).

  (1-35) An additional 10 cents per net clean 1b. over the price credited would equal $ 828.44 for that part of the wool involved in the first cause of action that was shipped on the S.S. Steel Designer.

  (1-36) Invoice dated December 5, 1950, rendered by Iravani for 202 bales of wool at 60 cents per net 1b. clean basis shipped on the S.S. Lindekerk-Averdyk. No description of colors of wool. (Plaintiff's Exh. 80).

  (1-37) Account #10, dated January 3, 1951, from Barkey to Iravani, covering shipment on the S.S. Lindekerk-Averdyk, credited Iravani with 60 cents per net 1b. clean basis for 61 bales of white wool on the contract of December 8, 1949. This wool, amounting to 30,381 1bs. net in the grease produced a yield of 50.9% or 15,463.9 net clean 1bs. (Plaintiff's Exh. 81).

  (1-38) An additional 10 cents per net clean 1b. over the price credited would equal $ 1546.39 for that part of the wool involved in the first cause of action that was shipped on the S.S. Lindekerk-Averdyk.

  (1-39) Invoice dated December 5, 1950 rendered by Iravani to Barkey, for 89 bales of wool at 60 cents per net 1b. clean basis shipped on the S.S. Laagkerk-Westerdam. No description of colors of wool. (Plaintiff's Exh. 82).

  (1-40) Account #6, dated November 8, 1950, from Barkey to Iravani, covering shipment on the S.S. Laagkerk-Westerdam, credited Iravani with 60 cents per net 1b. clean basis for 7 bales of white wool on the contract of December 8, 1950. This wool, amounting to 3170 1bs. net in the grease, produced a yield of 50.21% or 1591.7 net clean 1bs. (Plaintiff's Exh. 83).

  (1-41) An additional 10 cents per net 1b. clean basis over the price credited would equal $ 159.17 for that part of the wool involved in the first cause of action that was shipped on the S.S. Laagkerk-Westerdam. It is well to note at this point, however, that the correspondence contained in plaintiff's Exh. 73 makes no reference to wool shipment on the S.S. Laagkerk-Westerdam.

  (1-42) Draft drawn by Iravani against Barkey account with Bank Melli in Teheran was for amounts based on the 60 cents flat rate regardless of color as per the abovementioned invoices rendered by Iravani on the four shipments including the S.S. Laagkerk-Westerdam. (Plaintiff's Exh. 79). The draft was paid.

  Conclusory Remarks

  The defendant asserts in his brief that there was a fatal variance between the allegation in the pleading that the parties verbally agreed to change the purchase price from 60 cents to 70 cents for the wool sent on the four ships referred to above, and the proof of an averaging agreement.

  This court believes that the proof supports the pleading as to the wool shipped on 3 of the 4 ships, and further that what the defendant feels is a fatal variance is merely an enlargement of evidence based on the pleading. The averaging agreement is not a variance, it is evidence of the claim; and the plaintiff need not plead evidence. It might also be noted that, at least in this Circuit, a variance is seldom fatal unless the complaining party can show both genuine surprise and prejudice.

  The defendant's other objections based on this alleged variance are believed to be without merit on the basis of the ruling on the main objection.

  The defendant correctly points out that the correspondence included in plaintiff's Exh. 73 (see facts #1-26 through 1-28) makes no mention of the shipment on the S.S. Laagkerk-Westerdam, although it is mentioned in the draft (see fact #1-42). Accordingly, this court finds that, as to that shipment, the plaintiff has failed to sustain his burden of proof. While it is difficult to state at what exact point the evidence falls short of sustaining the burden of proof in this case, we believe that it has fallen short as to that shipment.

  The other defense raised by the defendant (e.g., lack of consideration and Statute of Frauds) are nullified by actual shipment and receipt of the goods in question and the communications contained in Plaintiff's Exh. 73 when looked at in the light of the whole series of transactions.

  Four years after performance of a contract by one party and receipt of the benefits by the other party is a poor time to raise the issue of lack of consideration in an attempt to rescind that agreement. It might even be argued that the communications contained in plaintiff's Exh. 73 constitute a rescission of the contract containing the 60 cents price and the making of a new contract containing all of the same provisions except for a 70 cents price. (See also Moore v. Scott Stamp & Coin Co., Inc., 2 Cir., 178 F.2d 3, and New York Personal Property Law, Book 40, McKinney's Consol.Law, c. 41, § 33(2)).

  Whatever occurred, the plaintiff did not 'hold up' the defendant for the extra 10 cents on the shipment involved in this cause of action; the goods had already been shipped at the time the price was changed. Therefore, such a change in price would not be against public policy as it might be in the case of a 'hold-up'.

  The communications included in Plaintiff's Exh. 73 referred to a rate of 70 cents per 1b. applicable against letter of credit #82037 (issued to cover the First Written Contract), rather than #83287 (issued to cover the Second Written Contract), against which the plaintiff would have had a right to invoice the shipments, since the restrictive clause had been deleted. The only logical reason for this permission was to raise the price to 70 cents per 1b. on those indicated shipments and yet to apply the tonnage in them against the First Written Contract.

  To indicate its rationale in deciding this cause of action, the court wishes to point out that many of the quotations it has taken from documentary evidence were included for background purposes and that these, together with other documentary evidence, are believed to indicate:

  1. that Iravani would have been bankrupted if he had been held to his agreements;

  2. that both Iravani and Barkey 'sold short' in the sense that they sold goods they had under contract rather than in their possession;

  3. that Barkey's position was such that the corporation was better off financially agreeing to pay Iravani more than the original contract price to avoid forcing him out of business, securing a hollow judgment, and being compelled to pay an even higher price on the then current market for wool with which to meet his own contractual obligations. (See testimony on contract prices between Barkey and Bigelow Sanford Carpet Co. (S.M. pp. 613-626)).

  4. that, therefore, Barkey did agree to pay 70 cents per net clean 1b. for certain white wool shipped pursuant to what amounts to an amendment of the First Written Contract on the steamers Lemsterkerk-Westerdam, Steel Designer and Lindekerk-Averdyk, as indicated above, but in fact only credited or paid Iravani at the rate of 60 cents per net clean 1b. for this wool. The change in price represented only one of a number of transactions agreed to at that time.

  In view of the above facts and conclusions, as well as the conclusions which this court draws from the fact that Barkey continued to meet the requests of Iravani, (as illustrated above) even though he was not compelled to do so, it is the opinion of this court that the plaintiff has sustained his burden of proof on that part of the first cause of action which concerns the shipments made on the Steamships Lemsterkerk-Westerdam, Steel Designer and Lindekerk-Averdyk, and should have judgment in the amount of 10 cents per 1b. for the number of net clean pounds computed above as per facts 1-32, 1-35 and 1-38, or $ 6,790.28 unless that amount was included in subsequent agreement of settlement which possibility will be determined in the court's analysis and decision of the settlement causes of action.

  Second Cause Of Action

  Turning now to the second cause of action, we note that it is composed of two parts or series of shipments; one under an alleged half-and-half arrangement, and the other under a straight delivery in accordance with the Second Written Contract.

  These shipments may be broken down further as follows:

  (A) Shipments allegedly made pursuant to the Second Written Contract and not claimed to be covered by the alleged half-and-half agreement were those on board the steamships:

  1. Steel Apprentice, sailing July 2nd, and arriving September 7, 1950;

  2. Steel Designer, sailing June 4, and arriving July 20, 1950;

  3. Lemsterkerk-Westerdam, sailing May 21, and arriving July 7, 1950;

  4. Lindekerk-Arkeldyk, sailing August 3, and arriving October 6, 1950.

  (B) Shipments allegedly made pursuant to a half-and-half agreement were those on board the steamships:

  1. Steel Designer, sailing September 20, and arriving November 2, 1950;

  2. Steel Artisan, sailing August 24, and arriving October 4, 1950;

  3. Lissekerk-Alblassadyk, sailing August 19, and arriving October 21, 1950;

  4. Steel Apprentice, sailing November 23, 1950, and arriving January 4, 1951.

  The sailing dates are taken from the plaintiff's main brief which differs slightly from the list of steamers (Plaintiff's Exh. 256) introduced for the convenience of the court. The voyages being thus identified, the exact dates are immaterial.

  In this cause of action, the plaintiff seeks an additional 10 cents per net clean lb. for white Iranian wool which he alleges was shipped pursuant to the Second Written Contract at 70 cents per lb., and which the defendant asserts was applicable to and paid for in accordance with the First Written Contract at the price paid of 60 cents per lb.

  Accordingly, the main fact for the determination of the court is which contract the parties intended these wool shipments to fulfill.

  Resuming our earlier method of listing some of the pertinent documentary evidence and conclusions drawn therefrom, we note the following:

  (2-1) Radiogram dated April 7, 1950, to Barkey from Kitching began as follows:

  'Iravani Interested New Business May June Hundred Tons Washed Two Hundred Greasy White Seventy Five Clean Fifty Black Thirty Eight Fifty Medium Grey Fifty Five Fifty Mixed Forty Five Wire Acceptance Or Counteroffer Stop'. (Plaintiff's Exh. 19).

  (2-2) Radiogram dated April 8, 1950, from Barkey to Kitching contained the following language:

  '100 Tons Washed 200 Tons Greasy White If Can Depend May June Shipment Absolutely Authorize Close Seventy Cents Clean'. (Plaintiff's Exh. 20).

  (2-3) Radiogram dated April 13, 1950, from Iravani to Valensi opened as follows:

  'Yours Nineth Confirming Two-hundred Tons Greasy Onehundred Tons Washed Seventy Cents'. (Plaintiff's Exh. 23).

  (2-4) Second Written Contract, as described in the introductory portion of this opinion. (Plaintiff's Exh. 25).

  (2-5) Letter of Credit #83287 dated April 24, 1950, issued for wool purchased through the Second Written Contract with a price of 70 cents per net clean lb. indicated. (Plaintiff's Exh. 61).

  (2-6) Letter dated April 10, 1950, from Valensi to Iravani, in discussing possible new business (which ultimately became the Second Written Contract), advised as to a proper profit for Barkey as follows:

  'However they certainly are entitled to net a few cents per lb. and that would mean a gross of close to 5 cents per lb.' (Plaintiff's Exh. 21).

  See also contract prices between Barkey and Bigelow-Sanford Carpet Co. (S.M. pp. 613-626).

  (2-7) Letter dated August 30, 1950, from Barkey to Valensi asking that Valensi communicate certain information to Iravani. Valensi forwarded this letter to Iravani together with a letter of his own (Plaintiff's Exh. 57). Barkey's letter contained the following quote:

  'You were very kind to let us read several of Mr. Iravani's letters, the contents of which were very carefully noted. From the reading of such letters, we got the impression that Mr. Iravani feels we have benefited in a very large way because of the perpendicular price advance in Wools. This is not the case, however. We are not speculators and our profits in sales that we made to mills against our purchases were only very nominal as they always are when trading in raw materials.' (Plaintiff's Exh. 58).

  (See also contract prices between Barkey and Bigelow-Sanford Carpet Co., S.M. pp. 613-626).

  (2-8) Summary sheet prepared by employee of Bigelow-Sanford Co. indicated a contract with Barkey for Iranian wool. The contract was dated March 14, 1950, was for white Iranian wool shipped aboard the 'S.S. Steel Artisan' and the 'S.S. Steel Apprentice', and was to be paid for at the rate of 75 cents per net clean lb. (Plaintiff's Exh. 257). Transactions leading to the above contract for 75 cents per net clean lb. of wool purchased from Iravani indicate the reason why Barkey may have been willing to let Iravani ship at 70 cents rather than requiring him to ship at 60 cents. The radiograms leading to this situation are as follows:

  (a) Radiogram dated March 7, 1950, from Barkey to Kitching:

  'Bigelow Willing Buy Half Quantity Iravani Purchase Seventy Five Cents Clean Shipment March April From Khorramshar Telegraph If Safe Assume Commitment Can We Depend Shipment At Least Such Quantity.' (Plaintiff's Exh. 15).

  (b) Cable dated March 9, 1950, from Kitching to Barkey:

  'Yours Seventh Would only Sell Amount Actually Declared Although Iravani Should Ship At Least Half Of Total Quantity.' (Plaintiff's Exh. 16).

  (c) Cable dated March 10, 1950, from Barkey to Kitching began as follows:

  'Sold Bigelow Fifty Tons Wool Iravani Stop'. (Plaintiff's Exh. 17).

  Another possible motivating factor in allowing shipment at the higher price was the fact that Barkey knew Iravani had turned down even higher prices offered by others because he wished to complete his obligations to Barkey. (Plaintiff's Exh. 40).

  (2-9) Cable dated June 2, 1950, from Kitching to Barkey contained following phrase:

  'Iravani Shipping on Designer Instead Leopoldskerk'. (Plaintiff's Exh. 65).

  (2-10) Cable dated June 12, 1950, from Iravani to Valensi contained the following excerpt:

  'To Recover Our Losses Requesting Sell Threehundred Tons At Present Market Price'. (Plaintiff's Exh. 66).

  (2-11) Cable dated June 12, 1950, from Valensi to Iravani began as follows:

  'Unclear Why Iranian Banks State Second Boston Credit Useless When Valid Condition Complete First Contract Which Understand Accomplishing Designer.' (Plaintiff's Exh. 67).

  (2-12) Letter dated June 15, 1950, from Valensi to Iravani, contained, inter alia, reasons why Barkey at that time would not delete the limiting clause in 2nd letter of credit; and reasons why Valensi cannot undertake to sell more wool while Barkey commitments were still outstanding. (Plaintiff's Exh. 68).

  (2-13) Radiogram dated June 15, 1950, from Iravani to Valensi, contained the following:

  '* * * 'But As Losses Unsupportable Arrange Barkey Accept Half All Future Shipments Against Contracts And Half To Sell Our Account Assure Fulfill All Contracts by Fifteenth July' * * * (Plaintiff's Exh. 103).

  (2-14) Letter dated June 16, 1950, from Kitching to Barkey contained the following sentences:

  'Evidently Iravani wants to make future shipments on a basis of half against contracts and half for own account and these latter to be sold at the going market. His story is that he will, in spite of half for own account, be able to finish the contracts by 15 July.' (Plaintiff's Exh. 45).

  (2-15) Radiogram dated June 19, 1950, from Barkey to Kitching, and referring to shipments of wool which form a portion of the subject matter of this cause of action, contains the following request:

  'Attend Immediately Airmailing Documents Lemsterkerk Designer'. (Plaintiff Exh. 46).

  (2-16) Radiogram dated June 21, 1950, from Kitching to Barkey, contains the following excerpt:

  'Iravani Advises Will Ship Half At Sixty Half Seventy And Will Complete Contracts Within Thirty Days Stop'. (Plaintiff's Exh. 47).

  (2-17) Letter dated July 1, 1950, from Kitching to Barkey contains the following reference to the shipment referred to in #2-15:

  'The expected weight lists together with commercial invoice on the 133 bale lot Steel Designer are not going in this mail.' (Plaintiff's Exh. 50).

  (2-18) Invoice dated July 6, 1950, for 133 bales of greasy white wool invoiced at 70 cents per net clean lb. shipped on the S.S. Steel Designed. (Plaintiff's Exh. 94).

  (2-19) Account #3, dated November 20, 1950, issued by Barkey to Iravani covering 133 bales of white wool shipped on the S.S. Steel Designer, and credited to Iravani at 60 cents per net clean lb. (Plaintiff's Exh. 95). The 133 bales amounted to 62,036 net lbs. in the grease which produced a yield of 46.27% or 28,704.1 net scoured lbs. which were credited to Iravani at the rate of 10 cents per net clean lb. lower than the invoiced amount. If Iravani's contention is correct that this white wool should have been paid for at the rate of 70 cents per net clean lb., then he should receive $ 2,870.41 in recompense for the underpayment.

  (2-20) Radiogram dated July 6, 1950, from Barkey to Kitching, includes the following:

  'Also Anxiously Awaiting Report Whereabouts Bœ Thousandthree Bales Ex Lemsterkerk'. (Plaintiff's Exh. 97).

  (2-21) Radiogram dated July 12, 1950, from Kitching to Barkey includes the following excerpt:

  'Yours Sixth Am Following Shipments * * * Lemsterkerk * * * Iravani Delivering Documents approximately Twentyseven Tons Lemsterkerk Requesting Seventeen Grand Will You Accept.' (Plaintiff's Exh. 98).

  (2-22) Radiogram dated July 14, 1950, from Barkey to Kitching contained the following excerpts:

  'Yours Twelfth * * * Twentyseven Tons Lemsterkerk Answering Monday'. (Plaintiff's Exh. 99).

  (2-23) Letter dated July 7, 1950, from Valensi to Iravani contains the following excerpts:

  'You seem to lose track of the fact that Barkey Importing Company contracted with you for the delivery of these wools back in December of 1949, which is some seven months ago. They as yet, have not received delivery of the wools for which they contracted, with the exception of some 75 tons of off-grade wools received on the SS Steel Artisan. They themselves, resold these wools and have already incurred heavy losses because of their default with the buyers here.'

  'If you require new credits to assist you in obtaining advances from the banks in Teheran, it is a very simple thing for you to obtain. All you have to do is complete the existing contracts and you have solemnly promised time and time again that these would be completed by June 30th, and now, not later than July 15th, which is only one week away.' (Plaintiff's Exh. 72).

  (2-24) Letter dated July 19, 1950, from Valensi to Iravani contained the following excerpts:

  'We acknowledge with thanks, receipt of your three letters of July 14th and copies of weight lists and invoices on part of the wools shipped per the SS. Lemsterkerk and the SS. Designer. At the same time, we wish to confirm our cablegram of July 18th per enclosed copy.'

  '400 Tons

  'We have continued to attempt to secure for you, a new letter of credit to cover the last sale of 400 tons. I now feel that Barkey can be persuaded to open up a credit before all of these contracts are completed, provided that a very substantial portion of the contracts are completed. I calculate that if as indicated, you effect shipment of 150 tons on the Laagkerk and another 150 tons on the Steel Apprentice, that Barkey will open up the new credit even though some 100 to 150 tons are still due him under the old contracts. This is, however, a very delicate matter. Regardless of the reasons why you desire this new credit, you are certainly not so naive as not to realize that you could very easily utilize immediately the new credit for the wools which were bought under the old contracts and thus be realizing an average of 80 cents per lb., on wools which were transacted at a time when the market levels were at 60 cents and 70 cents per lb. It is for these reasons that no new credit would be opened until the bulk of the old wools were delivered and the documents covering these wools were surrendered. This is even more imperative since your cablegram of the 5th of July, disturbed greatly the faith which the buyers had been reposing in you. And, as we have indicated in our letter to you, faith is the essential part of any business transaction.'

  '27 Tons:

  'We understand that it has been your desire to surrender documents covering 27 tons, directly to Mr. Kitching, against payment here of $ 17,000. Up until yesterday, when we received your invoices covering these 27 tons, we had no idea what this represented. Now that we received the copy of the invoices we were able to explain to Barkey how these $ 17,000 that you requested were arrived at. It was lack of information which prompted Barkey to counteroffer $ 15,000, since they did not know anything of the types and colors of these 27 tons. In the event this counteroffer has not already been accepted, we believe that Barkey, with new information on hand, will gladly and promptly advance the original $ 17,000 requested.' (Defendant's Exh. G).

  (2-25) Radiogram dated July 20, 1950, from Barkey to Kitching contained the following:

  'Thousandthree Bales Lemsterkerk Discharged Examined Together With Randyfound Approximately One-third Shipment Contains Darkcolors'. (Plaintiff's Exh. 71).

  (2-26) Invoice dated July 25, 1950, rendered by Iravani for 154 bales of white wool @ 70 cents per net clean lb. shipped on the S.S. Steel Apprentice. (Plaintiff's Exh. 84).

  (2-27) Radiogram stamped as received August 1, 1950 from Kitching to Barkey contains the following:

  'Documents In Hand In Order Thirtytwo Tons White Apprentice Seventy Cents Deliver Ten Grand Each' etc. (Plaintiff's Exh. 85).

  (2-28) Radiogram dated August 1, 1950, from Barkey to Kitching contained the following:

  'Have Done Needful Thirtytwo Tons White Apprentice Airmail B/L'. (Plaintiff's Exh. 86).

  (2-29) Invoice dated August 8, 1950, rendered by Iravani for 300 bales of wool (out of a 346 bale shipment) shipped on the S.S. Steel Apprentice of which 34 bales are invoiced at 70 cents per net clean lb. and 266 bales are invoiced at 60 cents per net clean lb. (Plaintiff's Exh. 87).

  (2-30) Invoice dated August 8, 1950, was rendered by Iravani for 51 bales white and 38 bales cream greasy wool shipped on the S.S. Steel Apprentice, with the white invoiced at 70 cents per net clean lb. and the cream at 60 cents per net clean lb. (Plaintiff's Exh. 88).

  (2-31) Account #4 dated October 16, 1950, rendered by Barkey to Iravani covering wool received on the Steel Apprentice covered the following bales:

  51 bales white

  154 bales white

  34 bales white

  Total 239 bales of Iranian white wool amounting to 119,670 net lbs. in the grease which produced a yield of 47.9% or 57,321.9 net scoured lbs. which were paid for at the rate of 60 cents per net clean lb. The account also credits Iravani with 60 cents per net clean lb. for 304 bales (38 plus 266) of No. 2 white wool. (Plaintiff's Exh. 89).

  If Iravani's contention is correct, that the white wool should have been paid for at the rate of 70 cents per net clean lb., then he should receive $ 5,732.19 in recompense for the underpayment.

  (2-32) Radiogram dated August 3, 1950, from Valensi to Iravani and quoted in fact #(1-18) in that portion of this opinion dealing with the first cause of action. (Defendant's Exh. K(1)).

  (2-33) Letter dated August 4, 1950, from Valensi to Iravani, and quoted in fact #(1-19) in that portion of this opinion dealing with the first cause of action. (Defendant's Exh. K).

  (2-34) Radiogram stamped as received August 9, 1950, from Kitching to Barkey contained the following:

  'Have Documents Covering Twentytwo Tons White Seventy Cents And Seventysix Tons Cream Sixty Cents All Steel Apprentice Ninety Percent Value Fiftyfour Thousand Deliver Thirtyfive Grand Murad And Confirm.' (Plaintiff's Exh. 90).

  (2-35) Radiogram dated August 9, 1950, from Barkey to Kitching contained the following:

  'Yours Eighth Thirtyfive Grand Murad Have Done Needful Airmail Documents Immediately Stop Have Not Yet Received Documents Thirty-two Tons Apprentice.'

  'What Are Iravani's Intentions Regarding Three Hundred Tons Balances Due Old Contracts'. (Plaintiff's Exh. 91).

  (2-36) Letter dated August 11, 1950, from Kitching to Barkey contained the excerpt included as #(1-20) in the opinion of this court on the first cause of action, and also the following paragraph:

  'Enclosed herewith are two bills lading covering the 35 grand you have just paid Murad. These are going in today's pouch and additional copies will go by international mail on Saturday and these you should have by Wednesday. These are bills of lading numbered 56 and 57 Steel Apprentice. No. 56 covers 300 bales, 34 bales of White and 266 bales of Cream. No. 57 covers 51 bales White and 38 bales Cream. Actually on this bill of Lading 94 bales were shipped but some are coloured, these he did not draw against.' (Plaintiff's Exh. 52, also 92).

  (2-37) Letter dated August 11, 1950, from Iravani to Valensi contained the following excerpts:

  'In our recent discussions with Mr. Kitching concerning our contracts of wool with Barkey, it has been most depressing to us to be told by him such things as, for instance, that it is dishonest on our part to invoice shipments at 70 cents while still having outstanding contracts at 60 cents. Or, 'When do you want to complete the first contract? Where is your wool? Why haven't you, etc. In this manner you will spoil your reputation' and general talk of this nature, always running us down.

  'My reply has been, 'All you say is quite true. Nevertheless, I feel that we are quite honest in our dealings with you * * *'.

  'I, therefore, requested him, for the sake of humanity, not to put us into serious difficulties by forcing us to complete the whole of our 60 cents contract first. This can only be achieved in the present state of affairs, by gradual shipments in combination with the second and the last contract of 400 tons.

  * * * 'It would be cruel and inconsiderate if you persisted in your aforesaid demands. It would seem that you want your goods no matter if we are obliterated by delivering them to you in the manner you demand * * *.

  'Despite all the foregoing difficulties and losses, we have borne them and will continue to bear them with the hope that we will be repaid for them in the future. But, if Mr. Barkey is not more lenient with us in the present difficult circumstances with the will to help us, as we are only working for him here, we would lose all hope of deriving any benefit from him in the future in recompense for the losses we have so far undergone.

  'When signing the last contract, we proposed to Mr. Kitching as a help to us, that our shipments be taken as 25% against the 1st. contract, 25% against the second two contracts and 50% against the last contract of 400 tons, to enable us to get a better average price on the whole. Mr. Kitching fully realized our position and cabled our aforesaid suggestion to Mr. Barkey.

  * * * 'Now we see from your telegram of the 3rd that Mr. Barkey is insisting that we first ship our first two contracts at 60 cents and 70 cents respectively and them come to the 85 cents contract. From the explanations we have already given to you in this letter, you will appreciate that this is an impossibility and if we were to do a thing like this at this stage it would simply mean going headlong into bankruptcy. As stated we must combine all our shipments against all our contracts in the percentages proposed by us to get a reasonable average price.

  'We hope that you will be able to persuade Mr. Barkey to accept all our shipments on the basis of 25% against the first contract of 350 tons 25% against the second two contracts of 300 and 100 tons

  and 50% against the last contract of 400 tons until we have duly completed all of them.'

  (Plaintiff's Exh. 53).

  (2-38) Letter dated August 12, 1950, from Kitching to Barkey, contained the following excerpts:

  'Enclosed herewith are three bills lading, Nos. 55, 56 and 57 of the Steel Apprentice.

  'Iravani has written under date of 11 August, a rather interesting letter to Valensi and I believe that Valensi should let you read it. It is 4 1/2 pages long and covers a lot of ground. I am too tough on him and shouldn't tell him it isn't honest to ship a 70 cents contract when there is still an outstanding contract at 60 cents. I have told Iravani all along to take the contracts in order and finish them in the same order they were booked.' (Plaintiff's Exh. 54).

  (2-39) Radiogram dated August 18, 1950, from Kitching to Barkey, contained in part the following:

  'Documents In Hand Twentyseven Tons White Lindekerk Seventy Cents * * *' (Plaintiff's Exh. 101).

  (2-40) Invoice dated August 15, 1950, rendered by Iravani covered 101 bales of white wool estimated at 60,767 net lbs. in the grease, invoiced at 70 cents per net clean lb. and shipped aboard the S.S. Lindekerk-Arkeldyk. (Plaintiff's Exh. 102).

  (2-41) Account #9 dated December 18, 1950, rendered by Barkey to Iravani covering 110 bales white and 25 bales cream wool shipped on the S.S. Lindekerk-Arkeldyk. The white wool weighed 61,003 net lbs. in the grease, produced an average yield of 43.015% and resulted in 26,240.4 net clean lbs. for which Barkey credited Iravani at 60 cents per net clean lb. (Plaintiff's Exh. 100). If Iravani's contention is correct, that this wool should have been paid for at the rate of 70 cents per net clean lb., then he should receive $ 2,624.04 as a recompense for the underpayment.

  (2-42) Account #9A dated December 30, 1950, rendered by Barkey to Iravani informed him that one bale previously counted as colored wool turned out to be white wool. This bale, shipped aboard the S.S. Lindekerk-Arkeldyk, was given a pro-rata value (per account #9) of $ 143.13. Thus, if Iravani was underpaid on that account, he was similarly underpaid on this one. As Barkey credits him at 60 cents rather than the 70 cents that Iravani claims, if the latter is correct, the added value of the bale would be onesixth of $ 143.13, or $ 23,86 (Plaintiff's Exh. 100A).

  (2-43) Radiogram stamped as received August 24, 1950, from Iravani to Valensi included the following quote:

  'Shipped Lissekerk Fifty Tons White Quantity Artisan Still Unknown'.

  This radiogram also contained the excerpt quoted in fact #(1-26) of the opinion of this court in the first cause of action and which the court believes is pertinent here also. (Plaintiff's Exh. 73).

  (2-44) Radiogram dated August 25, 1950, from Valensi to Iravani contained the quotation used in our opinion on the first cause of action, fact #(1-27), and pertinent here also. (Plaintiff's Exh. 73).

  (2-45) Letter dated August 29, 1950, from Valensi to Iravani containing the quotation used in our opinion in the first cause of action, fact #(1-28) and pertinent here. (Plaintiff's Exh. 73).

  (2-46) Invoice dated July 6, 1950, rendered by Iravani for 45 bales of Greasy Meshed wool shipped aboard the SS Lemsterkerk. The estimated net weight in the grease was 15,602 lbs.; the estimated yield was 52% and the invoice price was 60 cents per net clean lb. (Defendant's Exh. E). In pencil at the top of this invoice, Barkey has noted that he paid $ 17,000 for the 45 bales therein together with the 130 bale lot. (See fact #2-49) (infra).

  (2-47) Invoice dated December 5, 1950, referred to in fact #(1-29) in our opinion on the first cause of action and pertinent here. (Plaintiff's Exh. 75).

  (2-48) Account #2 dated October 29, 1950, which is referred to in our opinion as fact #(1-30) in the first cause of action and pertinent here. (Plaintiff's Exh. 76).

  (2-49) Invoice dated July 6, 1950, referred to in our opinion as fact #(1-31) in the first cause of action and pertinent here also (Plaintiff's Exh. 96). It is well to note here that this shipment (invoiced at 70 cents per net clean lb.) is specifically deducted from the whole shipment involved in the first cause of action on the ground that it forms a portion of the second cause of action. It amounts to 43,637 net lbs. of white wool in the grease with a yield of 49.7% as per plaintiff's Exh. 76 and fact #(1-32) in the first cause of action. In pencil, at the top of the invoice (Plaintiff's Exhibit 96) Barkey has noted that he paid $ 17,000 for the 130 bales of wool invoiced thereon together with a 45 bale lot (see fact #2-46 supra).

  (2-50) Thus, multiplying the net lbs. of greasy wool (43,637) by the resultant percentage yield of clean wool (49.7%), we arrive at the figure of 21,687.589 or 21,687.6 net clean lbs. which remain as forming a portion of the wool on which an additional 10 cents per net clean lb. is claimed. If Iravani's contention is correct that he should have been paid for this wool at the rate of 70 cents per net clean lb., then he should receive $ 2,168.76 in recompense for the underpayment.

  (2-51) The letter dated August 28, 1950, from Valensi to Iravani was in answer to Iravani's letter of August 11, 1950, to Valensi. In this letter Valensi, in pointing out how Barkey had already helped Iravani, included the following phrases:

  * * * 'we have permitted you to invoice material under the several contracts at 60 cents and 70 cents so that you can average your prices, etc., etc.'

  And with reference to Iravani's request for a new credit to be opened under the Fourth Written Contract, Valensi wrote:

  'It would be most naive for you to believe that a buyer here would open up in your favor, the letter of credit for 400 tons of wool, permitting you to bill him at 85 cents per pound when you still owe him wools at 60 cents and 70 cents per pound.' (Plaintiff's Exh. 55).

  (2-52) Letter dated September 8, 1950, from Iravani to Valensi, contained the following excerpts:

  'First of all we should like to state that we will complete all our contracts by the end of November 1950, provided Mr. Barkey could see his way to cooperate with us by agreeing to our undermentioned suggestions without alteration. Mr. Barkey writes that we owe him in all about 650 tons or more of wool. In the present situation it will of course be necessary for him to arrange matters in such a way so that the gets his 650 tons of wool quickly and at the same time protects us against heavy losses. * * * 'The present position of our un-negotiated shipments, stocks and purchases at to-day's high prices are as follows: Shipped per S.S. "Lissekerk" 25,980 kilos Shipped per S.S. "Lindekerk" 12,000 kilos Shipped per "Steel Artisan" *fn1" 50,100 kilos /-- *fn1" 88,080 kilos Ready stocks...150 tons Purchases for prompt delivery 110 tons

  'If we say that we will ship all these wools towards our contracts, it woul (sic) be untrue, since we would suffer an unbearable loss. Consequently, the only feasible course that we should like to suggest under the present circumstances is:

  'That we ship half the quantity of these wools and half of any purchase that we may make hereafter against our outstanding contracts, provided that Mr. Barkey will immediately (sic) amends his letter of credit in our favour for the full value of the last contract of 400 tons. And, the other half to be sold by you or him for us to any mill at the best and highest prices available on a commission basis for your selves. (sic) The sale of our half of the wool would be subject to our final cable confirmation regarding the price.

  'In concluding this letter, we should again like to express the hope that Mr. Barkey will agree to our suggestions herein. Please do not send us ultimatums. For example, when Mr. Kitching telephoned to New York, he came and gave us a final ultimatum that all the contracts must be shipped by the end of October 1/3 against the first contract, 1/3 against the second and 1/3 against the last.' (Plaintiff's Exh. 59).

  (2-53) Radiogram dated September 14, 1950, from Iravani to Valensi ended as follows:

  * * * 'Shipping This Month 250 Tons Half Against Contract Half For Sale At Present Prices In This Manner Hope Complete All Contracts End November'. (Plaintiff's Exh. 112).

  (2-54) Letter dated September 20, 1950, from Valensi to Iravani contained the following excerpts:

  'With reference to the letter of credit Barkey's position on this subject has been stated to you many times. Now according to your last indications you will not be able to ship more than 300 tons by the end of October, and even that quantity seems to be in doubt. There seems to be little point then in issuing at this time a credit for greater quantities than those which you yourself indicate. A credit for $ 200,000 was originally issued to you in accordance with your agreement and manifestly for the purpose of enabling you to obtain local financing. Now that you indicate that you desire a change Barkey is willing to go along with you, but desires to stick within the realm of the actual and within the realm of his agreement. We feel that a letter of credit for 300 tons, as proposed to cover 90% of the value of the merchandise based on one-third to be delivered under the first contract, one-third of the quantity to be delivered under the second contract, and one-third of the quantity to be delivered under the third contract, would in this instance provide you with the necessary credits in your immediate requirements.

  'Additional Business. Your proposal that on all future deliveries one-half be applied against your contracts and one-half be sold by Barkey for your account on a strict commission basis is not practicable for many reasons.'

  Valensi then what on to give the reasons and also added:

  'We have indicated to you in earlier correspondence that the most vital thing at this time is to complete the first two contracts, on which a balance of some 300 tons is due.'

  'S.S. Lissekerk From you cable advices we note that you stated that you had shipped some 50 tons on the S.S. Lissekerk, while in your letter you indicate shipments of only some 26 tons. Will you please explain the difference? * * * Will you also do the same in the S.S. Lindekerk.' (Plaintiff's Exh. 64).

  (2-55) Radiogram dated September 21, 1950, from Iravani to Valensi answering his remarks re negotiation of letter of credit #82037 for full $ 114,257 contained the following excerpts:

  'Imperative Pay Murad Murgently 25000 Stop Invoices Listed Bank Melli At Sixty Cents Less Freights Total 145325 Dollars Of Which 114257 Payable According Credit * * *.

  'Regarding Completion Contracts And Future Shipments Only Possible Way Proposals Our Letter Eight Delay Credit Fourhundred Tons Only Worsening Matters If Agreeable Open This Credit Urgently Stipulating Therein Valid Provided 200000 Cancelled Meanwhile Sell Half Shipments Eighty Tons Lissekerk Lindekerk Artisan And Sixty Tons Designer At Present Prices Will Draw Thirty Days Sight Other Half Will Draw Against Contract'. (Plaintiff's Exh. 114).

  (2-56) Radiogram, dated September 25, 1950, from Valensi to Iravani discussing the $ 114,257 amount referred to earlier, ended as follows:

  'Impossible Accept You Proposal Eighty Tons Lissekerk (sic) Lindekerk Artisan Because Barkey Already Declared Steamer Names Fully To His Customers Stop Willing Accept Sixty Tons Designer Half Sell Your Account Prices Prevailing Upon Arrival Steamer Half Accept Under Contracts And All Future Shipments Likewise Provided Arrive At Prompt Satisfactory Solution Twentyfive Grand And Negociation (sic) 114257' .(Plaintiff's Exh. 115). (parenthesis supplied.) (2-57) Invoice dated December 3, 1950, rendered by Iravani, for 1099 bales of wool (colors not indicated) shipped on the S.S. Stell Apprentice included the following: Est. Wt. Bales (net clean lbs.) @ 204 39,572 $ .85 205 39,572 1.30 112 24,093.5 .75 111 24,093.5 1.20 74 17,819 .65 24 4,576.5 .65 215 54,891.5 .60 24 5,909 .85 25 5,909 1.30 33 9,347 .75 33 9,347 1.20 10 2,851 .65 7 2,128 .65 22 5,760 .60

  (Plaintiff's Exh. 129).

  (2-58) Invoice, dated December 3, 1950, rendered by Iravani, for 57 bales of wool (colors not designated), shipped on board the SS Steel Designer included: 8 bales, net clean weight estimated at 1798 lbs. @ 75 cents; 7 bales, net clean weight estimated at 1798 lbs. @ $ 1.20; and 42 bales net clean weight estimated at 9,888 lbs. @ 60 cents. (Plaintiff's Exh. 130). (2-59) Invoice dated December 3, 1950, rendered by Iravani for 167 bales of wool (colors not designated), of which 112 bales were shipped on the S.S. Lissekerk and 55 bales were shipped on the S.S. Lindekerk as follows: Estimated net Bales clean lbs. @ 52 13,446.5 $ .70 52 13,446.5 1.30 17 4,256 .75 17 4,256 1.20 29 *fn2" 6,315.5 260

  (Plaintiff's Exh. 131). (2-60) Invoice dated December 3, 1950, rendered by Iravani for 147 bales of wool (colors not designated) shipped on the S.S. Steel Artisan, as follows: Estimated net Bales clean lbs. @ 1 258 $ .70 22 6,334 .75 21 6,334 1.20 103 28,873 .60

  (Plaintiff's Exh. 132). (2-61) Invoice dated December 3, 1950, rendered by Iravani for 215 bales of wool (colors not designated) shipped on the S.S. Steel Designer, as follows: Estimated net Bales clean lbs. @ 35 9,747 $ .70 35 9,747 1.30 26 6,783 .75 25 6,783 1.20 54 15,399 .60 20 5,875 .70 20 5,875 1.30

  (Plaintiff's Exh. 133).

  (2-62) Draft dated December 20, 1950, issued by Iravani to cover invoices which are plaintiff's Exhibits 129 through 133 after deducting freight and other charges. The face amount of the draft is $ 316,010.88. (Plaintiff's Exh. 135). The plaintiff testified that the draft was paid after Mr. Iravani came to this country and the defendant conceded that $ 200,000 was paid March 14, 1951, and $ 116.028.88 on March 23, 1951 (S.M. 101). (The discrepancy of $ 18.00 is not explained.) (2-63) Corrected Account #11 dated June 15, 1951, rendered by Barkey to Iravani covering 1099 bales of wool shipped on the S.S. Steel Apprentice credited Iravani as follows: Bales Color Net clean lbs. @ Per Contract Dated /-- /-- /-- /-- /-- 111 white 23,599 $ .60 12-8-49 ( 21040 .60 12-8-49 158 white ( /-- /-- ( 10144 .70 4-17-50 170 white 43377 .70 4-17-50 70 cream 16347 .75 6-30-50 35 *fn3" 9181 .75 6-30-50 cream 56 ) ) cream 38532 .75 6-30-50 98 ) 130 ) ) colored 42789 .73 not indicated 28 ) 152 colored 39959 .73 not indicated 90 colored 24845 .73 Not indicated 1 (short)

  (2-64) It is as to first and third, and a portion of the second items that Iravani seeks an additional 10 cents per net scoured pound. The first item of 111 bales which produced 23,599 net clean lbs., the second item of 158 bales which produced 31,184 net clean lbs. and the third item of 170 bales which produced 43,377 net clean lbs. totals 98,160 net clean lbs. of white wool. If the plaintiff's contentions are correct, he was entitled to have the lower-priced one-half of this poundage (or 49,080) credited to him at 70 cents per net clean lb. According to defendant's Exh. UU, p. 2, the poundage of clean wool covered by these shipments and credited to Iravani an the lower rate of 60 cents per net clean lb. was 44,639 lbs.; at 10 cents per lb. extra this would total $ 4,463.90. (2-65) Account #8, dated December 30, 1950, rendered by Barkey to Iravani, covering 272 bales of wool (see invoice summaries in facts 2-58 and 2-61 supra) shipped aboard SS Steel Designer credited Iravani as follows: Bales Color Net Clean lbs. @ Per Contract Dated /-- /-- /-- /-- /-- 40 ) )white 10,849 $ .60 12-8-49 1 ) 52 " 13,007 .60 12-8-49 76 ) )cream 19,632 .75 6-30-50 1 ) 4 S.A.G. white *fn4" 896 .60 12-8-49 4 S.A.G. cream *fn4" 927 .75 6-30-50 /-- 178 Total accredited for 94 Colored remaining in warehouse /-- 272 Total bales in shipment (2-66) Account #5 dated November 30, 1950, rendered by Barkey to Iravani covering 112 bales shipped on the SS Lissekerk-Alblasserdyk credited Iravani as follows: Bales Color Net Clean lbs. @ Per Contract Dated /-- /-- /-- /-- /-- 80 white 20,767 $ .60 12-8-49 16 cream 4,303 .75 6-30-50 16 colored (in storage for Iravani's account).

  (Plaintiff's Exh. 138).

  (2-67) Iravani seeks 10 cents per lb. for 17,592 1/2 net clean lbs. of white wool shipped on the S.S. Lissekerk-Alblasserdyk. This weight is made up of portions of the 20,767 net clean lbs. computed as follows:

  Of the total figure of 20,767 lbs., 14,418 lbs. were excluded from the half and half arrangement in order, combined with other shipments (see Fourth Cause of Action), to add up to the 80 tons referred to in the Valensi cable of September 25, 1950, fact #2-56. Thus, as to this full 14,418 lbs. and as to the 1/2 of the balance of 6,349 lbs. (or 3,174 1/2 lbs.), totalling 17,592 1/2 lbs., the plaintiff seeks an additional 10 cents per lb. If his contentions are correct, Iravani is entitled to $ 1,759.25 for underpayment on the wool involved in this shipment. (2-68) Account #7, dated December 30, 1950, rendered by Barkey to Iravani covering 147 bales of wool shipped aboard the S.S. Steel Artisan credited Iravani as follows: Bales Color Net Clean Lbs. @ Per Contract Dated /-- /-- /-- /-- /-- 43 cream 11,552 $ .75 6-30-50 1 white 236 .60 12-8-49 103 colored (in storage)

  (Plaintiff's Exh. 139).

  (2-69) Letter dated November 23, 1950, from Iravani to Valensi includes the following excerpts:

  'We are writing to acknowledge with thanks the receipt of your letters dated October 13th, and 8th, 10th, 13th and 16th. November, together with the enclosed accounts rendered by Mr. Barkey. We have just glanced over these accounts and have not had the time yet to go through them thoroughly. Moreover, you had not sent us the complete accounts up to date to enable us to know our exact position. We should like to know what is actually due to us now, in accordance with Mr. Barkey's caculations.

  'We have however noted that Mr. Barkey has calculated all our previous shipments at the price of 60 cents although we had drawn on him for them at 70 cents which he paid. We presume that he has placed the difference between the above two prices to the debit of our account with him. You will not doubt appreciate, that under such abnormal circumstances it was quite impossible for us to invoice and to draw on Mr. Barkey at 60 cents for these shipments, the documents of which we handed over to Mr. Kitching here. When Mr. Kitching was here, I discussed this matter with him and he communicated it to Mr. Barkey. It was then agreed that I should draw on them at 70 cents. For example, all the drafts drawn by me against the shipments per the 'Steel Apprentice' and the 'Steel Designer', with the exception of the 481 bales on the 'Steel Artisan', were at the price of 70 cents as agreed. We therefore cannot understand why Mr. Barkey has now calculated them at 60 cents. This will cause a lot of inconvenience and a mix up, since each shipment has been invoiced and paid for at the agreed price that we had drawn.

  'You will recollect that some time previously we sent you the Bank Melli account showing a loss to us on the first two shipments that we had made at 60 cents, despite the fact that these wools had been bought when prices here were comparatively cheap. Prices now are over three times that purchase value. Surely, Mr. Barkey should consider our position and not reduce the price to 60 cents for those shipments against which he has already paid us 70 cents * * *.

  'Another reason that prompted us to buy wool at current high prices was because we heard in the radio news that the price of wool would still go up and we considered it advisable, therefore, to buy up whatever wool we could lay our hands on at present prices, before they went up further. This fact in itself, places us in considerable risk and danger, if Mr. Barkey does not extend to us his closest cooperation with regard to prices. His insistance that we should complete our contracts at 60 cents and 70 cents, while we are paying twice that amount here, would simply mean not only our going out of business, but running headlong into bankruptcy. * * *' 'It is quite obvious, that no one now could possibly buy wool at for instance $ 1.30 per lb. and deliver it at 60 cents or 70 cents. It would be good for all concerned if Mr. Barkey would arrange a compromise or an agreement with the mills with which he himself has committments, to cancel the first two contracts with them, owing to circumstances, as already explained, entirely beyond our control * * *.

  'We are therefore shipping a total quantity of 300 tons on the 'Steel Apprentice'. We are negotiating the documents for the 125 tons on this steamer through the bank, on the basis of our agreement, half against the last contract and half at present prices for our own account.

  'Regarding our shipments per the 'Lissekerk', 'Lindekerk', 'Steel Designer' and 'Steel Artisan', we have handed the relative documents and our drafts on Mr. Barkey to the bank here, half at 70 cents for the white and 75 cents for the cream, and the other half at $ 1.30 for the white and $ 1.20 for the cream and 60 cents for the coloured, based on our mutual agreement that all our previous shipments be calculated half at contract prices and half for our account at current prices. Kindly see to it that none of our aforesaid drafts are dishonoured, since it will be very bad for us here if they are.' (Plaintiff's Exh. 134).

  (2-70) Letter dated November 10, 1950, from Valensi to Iravani enclosing Barkey's accounts numbered 2, 3A, 3D and 4, contained the following:

  'We have attempted to control these accounts for accuracy as best as we could. However, it is not possible for us to control each account in its entirety since we lack the necessary documentation here. In particular we have no way of checking the amounts of freight disbursed for your account since we do not have copies of the bills of lading. In like manner it is not possible for us to check the disbursements made for your account, such as for handling, weighing warehousing, insurance, etc., although we feel that the charges appear reasonable in accordance with our past experience.

  'You will also note that the wools received are being charged off to each contract in its chronological order, in other words the wools are being applied first to our contract of December 8, 1949, and when that is exhausted the wools are being applied to the contracts of April 17 and 21, etc. This is done as a matter of expediency and to permit some sort of control on the balances actually due under each contract. The first contract has been calculated according to the modifications agreed upon during my visit to Teheran on the basis of 300 tons of white greasy wools and 40 tons of cream wools. The other contracts stand as written. As a result of your very large shipments of second light wools compared to white wools you will notice that you are already running well into the final contract of June 30 on these wools. You will also notice that in accordance with the principles established above these wools are being credited to you at the contract price of 75 cents per pound'. (Defendant's Exh. R).

  (2-71) Letter dated January 5, 1951, from Valensi to Iravani, included the following:

  'We should also mention that it is our impression that contrary to your understanding Barkey will not accept one-half of these wools under contract and sell the other one-half for your account at current market prices. It is our impression that Barkey will attempt to seek full satisfaction on all contracts with whatever wools you ship, including the last contract for 400 tons, before he will consider accepting any wools as a consignment for sale for your account at current market prices. This feeling of ours is further strengthened by the fact that Barkey appeared to be very much concerned with the wools ex § .s. Steel Apprentice and the wools to be shipped at the time by the § .s. Steel Artisan on the basis that he was committed under contracts of his own on the basis of his contract with you for 400 tons.' (Defendant's Exh. AA).

  (2-72) Accountants' statement setting forth the schedule by which Barkey credited the shipments received from Iravani to the various contracts and to excess. This statement, marked defendant's Exh. QQ, is incorporated as if fully set forth herein. It should be noted, however, that this is the method Barkey used, and not necessarily the one he should have used; therefore its effect is limited.

  According to this schedule, Barkey applied white wool received against the first contract until it was completed by shipment received on the S.S. Steel Apprentice which arrived January 4, 1951 (see Barkey accounting #11). The cream wool as per the first contract is considered by Barkey to have been completed by shipment received on the S.S. Lemsterkerk-Westerdam on July 17, 1950. (See Barkey accounting #2).

  Part of the wool received on the S.S. Steel Apprentice as per above also began Barkey's crediting the wool toward the Second Written Contract which Barkey regarded as completed by shipment received on the S.S. Steel Voyager on July 20, 1951. (See Barkey's Accountings #11-22A).

  Conclusory Remarks

  The shipments on the S.S. Steel Apprentice on its voyage commencing July 2, 1950, and ending on September 7, 1950, contained the wool referred to in Iravani's invoices listed herein in facts 2-26, 2-29 and 2-30, and in Barkey's account #4 (see fact #2-31).

  The question of whether this wool should have been paid for at the accounting rate of 60 cents or the invoiced rate of 70 cents per net scoured lb. is resolved in favor of the plaintiff in the opinion of the court, by the communications listed in facts 2-27, 2-28, 2-34 and 2-35, between Barkey and Kitching referring to shipment of the white wool at 70 cents.

  The shipment on the S.S. Steel Designer on its voyage commencing June 4, 1950 and ending July 20, 1950 involves a similar question of the price upon which the parties ultimately agreed; 70 cents as invoiced (see fact #2-18) or 60 cents as per accounting #3 (see fact #2-19).

  This shipment, the documents of title to which several of the communications between Barkey and Kitching refer, is not as clearly confirmed at 70 cents as were the shipments on the Apprentice. Absent proof to the contrary, we assume that shipment was made at the old contract price of 60 cents. Accordingly, since this court is of the opinion that the plaintiff has failed to sustain the burden of proof as to the additional 10 cents per net clean lb. of the wool involved in this shipment, we must rule against him on the question of this shipment.

  The shipment on the S.S. Lemsterkerk-Westerdam on its voyage commencing May 21, 1950 and ending on July 7, 1950, contained the wool referred to in Iravani's invoice listed herein in fact #2-49 and Barkey's Account #2 listed herein in fact #2-48. Barkey's request to Kitching for the information as to the location of this shipment (fact #2-15), Kitching's answer informing him of Iravani's request for $ 17,000 (fact #2-21), Barkey's reply to the request (fact #2-22), his notations of payment of the $ 17,000 on the two invoices, one for 60 cents and the other for 70 cents per net clean lb. (see facts 2-39 and 2-46) together with Valensi's letter (see fact #2-45) all point to the fact that Barkey agreed to Iravani's request. At the invoiced prices, Iravani would have a right to ask for the $ 17,000 since the agreed amount payable against the documents at invoice prices may be computed as follows: $ 13,745.65 (90% @ 70 cents) 3,894.25 (80% @ 60 cents) $ 17,639.90 Whereas, if both lots were computed at the 60 cent price as credited by Barkey, the amount to which Iravani would have been entitled would be computed as follows: $ 11,781.99 (90% @ 60 cents) 3,894.25 (80% @ 60 cents) $ 15,676.24

  The figure of $ 11,781.99 was arrived at as follows: the invoice net greasy poundage with a yield of 50% would produce a figure of $ 13,091.10 if paid for at the rate of 60 cents per net clean lb.; 90% of this amount produces the above figure used in the computation.

  It thus becomes clear that Barkey would not have agreed to pay the $ 17,000 if he were computing the price of both invoiced amounts at 60 cents per net clean lb., but would agree to do so if he computed the 130 bale lot at 70 cents per net clean lb.

  It is therefore the opinion of the court that, as to this shipment, the plaintiff has sustained his burden of proof and would be entitled to the additional 10 cents as demanded.

  The shipment on the S.S Lindekerk-Arkeldyk on its voyage commencing August 3, 1950, and ending on October 6, 1950, contained the wool referred to in Iravani's invoice listed herein in fact #2-40 and in Barkey's accounts listed herein in facts # #2-41 and 2-42.

  The weight of the shipment amounted to about 27 tons of greasy wool; and in view of Kitching's cable listed in fact #2-21, it is the opinion of this court that the plaintiff has sustained his burden of proof as to the additional 10 cents per net clean lb. for the wool involved in this shipment.

  In conclusion, as to the shipments in this cause of action which were not claimed to be covered by the half-and-half arrangement, the plaintiff has sustained his burden of proof as to three of the four shipments, and according to the computations indicated in facts # #2-31, 2-50, 2-41 and 2-42. Adding these figures we conclude that Barkey underpaid Iravani in the amount of $ 10,548.85 on these claims.

  The second half of the second cause of action concerns itself in part with the existence of a half-and-half arrangement. Although the higher half of the prices claimed under this arrangement are not a part of this cause of action, we will note in passing that it is apparent that, at least in the beginning, Iravani believed Barkey would permit the half-and-half arrangement, and also that Barkey knew he believed it (see facts # #2-13, 2-14, 2-16, 2-37, 2-51, 2-52, 2-53, 2-54, 2-55, 2-56 and 2-71, and all of the invoices referred to in the portion of this opinion dealing with the second half of this cause of action.)

  Turning now to the claims in this cause of action involving four shipments pursuant to the alleged half-and-half agreement, three of them may be taken together since the proof offered is as to the three of them rather than as to each individual shipment.

  The shipments on the Steel Designer's voyage commencing September 20, 1950, and ending November 2, 1950, the Steel Artisan's voyage commencing August 24, 1950, and ending October 4, 1950, and the Lissekerk-Alblassadyk's voyage commencing August 19, 1950, and ending October 21, 1950, are the subject matter of the action.

  The plaintiff's invoices covering these shipments are listed in facts 2-58, 2-59, 2-60, and 2-61, and the defendant's accounts are listed in facts 2-65, 2-66 and 2-68.

  The shipment on the S.S. Steel Designer was in two lots with two invoices (see facts # #2-58 and 2-61), neither of which listed the colors of the wool shipped. These two lots are combined in Barkey's account #8 (see fact #2-65) covering 215 bales. In that account, Barkey lists the wools as being part colored, part cream and part white.

  The white (24,752 net clean lbs.) is credited to Iravani at the rate of 60 cents per net clean lb., despite the fact that all the bales were invoiced generally at prices of 60 cents, 70 cents, 75 cents, $ 1.20 and $ 1.30. Half of the above poundage (or 12,376 lbs.) is claimed by Iravani to have been invoiced at 70 cents per net clean lb. (see infra).

  The shipment on the S.S. Steel Artisan is covered by the invoice listed in fact #2-60, and Barkey's account #7 (see fact #2-68).

  This 147 bale lot, contained, according to Barkey's account, only 1 bale of white wool; Iravani invoiced a 1 bale item at 70 cents and Barkey credited it at 60 cents per net clean lb. Its yield is given as 236 lbs., half of which it is claimed should have been credited at the rate of 70 cents.

  The shipment on the S.S. Lissekerk-Alblassedyk contained 112 bales (see fact #2-59) which, invoiced together with a 55 bale shipment on the S.S. Lindekerk-Arkeldyk, carried invoice prices of 60 cents, 70 cents, 75 cents, $ 1.20 and $ 1.30 per net clean lb. This wool is covered by Barkey's Account #5 (see fact #2-66), which lists 80 of the 112 bales as white. This white wool (with a yield of 20,767 net clean lbs.) is credited to Iravani at the rate of 60 cents per net clean lb. Iravani claims that 17,592 1/2 lbs. of it (see computation in fact #2-67) should have been credited at the rate of 70 cents per net clean lb.

  The three aforementioned shipments are referred to in a letter from Ravani to Valensi (see fact #2-69) in which Iravani stated that he considered the white wool to have been invoiced half at the 70 cent rate and half at the $ 1.30 rate. It is the 70 cent half, credited to him by Barkey at the rate of 60 cents which forms the crux of the dispute in this portion of the second cause of action.

  Although Iravani's letter refers to the 70 cent price as being based on mutual agreement, and although the draft covering both these shipments and the shipment on the S.S. Steel Apprentice was eventually paid (see fact #2-62), this court finds that the plaintiff has failed to sustain his burden of proof as to that portion of the second cause of action covering these three shipments. This conclusion is based on the facts that his letter is obviously self-serving, and that the draft was not paid until March of 1951, after the settlement agreement had been reached.

  The fourth shipment with which this portion of the second cause of action is concerned, is the shipment on the SS Steel Apprentice.

  This shipment of 1099 bales (see fact #2-57) was invoiced at various prices (i.e., 60 cents, 65 cents, 75 cents, 85 cents, $ 1.20 and $ 1.30). Barkey's corrected Account #11 (see facts # #2-63 and 2-64) lists the amount of white wool as yielding 98,160 net clean lbs. and credits 44,639 lbs. of this amount at the rate of 60 cents per net clean lb. Iravani claims that half of the 98,160 (49,080) lbs. should have been credited at 70 cents per net clean lb. and seeks the additional amount for the poundage credited at 60 cents. There is nothing to support plaintiff's claim to the additional amount for the shipment except the payment of the draft (see fact #2-62) and this is insufficient for the reason mentioned previously.

  Barkey's crediting at the rate of 60 cents the amounts claimed at 70 cents is proper as closing out Iravani's existing obligations, and was made known to Iravani, if he had had any doubts on that score, by the letter from Valensi quoted in fact #2-70.

  Accordingly, this court finds for the defendant on this portion of the second cause of action.

  In conclusion as to the entire second cause of action, and in the light of all of the facts listed above, we find for the plaintiff in the amount of $ 10,548.85 unless it is found that the claims here involved were disposed of in the alleged final settlement agreement.

  Third Cause of Action

  The third cause of action concerns itself with an alleged consignment by Iravani to Barkey of 142 bales of wool which Iravani claims was shipped to Barkey to be sold by him (Barkey) at the then market price and for Iravani's account.

  That these bales were shipped by Iravani and sold by Barkey is not denied. The dispute centers around an alleged modification by Barkey, authorized by Valensi, which Barkey claims changed the terms of the original agreement to provide for the market price to be paid Iravani on these bales only if any and when he completed his outstanding contracts.

  The documentary evidence concerning this shipment is as follows:

  (3-1) Radiogram, dated June 15, 1950, from Iravani to Valensi contained the following excerpt:

  'Shipped Further 142 Bales Which Owing Heavy Loss First Contract Requesting to Sell Immediately At Present Market Price.' (Plaintiff's Exh. 103).

  (3-2) Radiogram, stamped as received in Iran on June 20, 1950, from Valensi to Iravani, contained in part the following:

  '94 and 142 Bales Consignments Further Sales Your Account Writing Fully.' (Plaintiff's Exh. 104).

  (3-3) Radiogram, stamped as received June 30, 1950, from Iravani, to Valensi contained, inter alia, these words:

  '142 Bales Barkey Accepted To Sell At Present Prices Please Authorize Draw Against Documents.'

  (Plaintiff's Exh. 105).

  (3-4) Radiogram, dated July 6, 1950, from Valensi to Iravani contains the following excerpt:

  '142 Bales Barkey Willing Advance Ninethousand Dollars Against Full Set Documents Although Unable Sell At Present.' (Plaintiff's Exh. 106).

  (3-5) Provisional invoice dated July 6, 1950, rendered by Iravani for 142 bales of wool (colors not designated) shipped on the S.S. Steel Designer, states that the shipment is for the account of Iravani on consignment to Barkey. It estimates the yield at 50% of the 33,702 net greasy lbs. and the price at 90 cents per net clean lb., or $ 15,165.90 less freight. (Plaintiffs Exh. 107). (3-6) Barkey Account #3B, dated October 30, 1950, rendered to Iravani for: Net lbs. in No. of Bales Color grease % Yield At Total 131 white 30,448 54.5 $ .85 $ 14,104.90 7 #2 white 1,802 51.9 .75 701.25 4 colored 945 51.9 .42 205.80 /-- /-- 142 $ 15,011.95

  (Plaintiffs Exh. 108).

  (3-7) Letter, dated July 7, 1950, from Valensi to Iravani, was illustrative of the unfriendly relationship then existing between the parties to this action. After enumerating several of the unpleasant details, Valensi then went on to include the following:

  '142 Bales:

  'In view of the foregoing, it is not possible for Barkey to sell these 142 bales for your account as you desire. Nor, would it be possible for him to advance you up to $ 12,000 on these 142 bales, since from the information we have here plus the information supplied in your cablegram, this would represent an advance far in excess of any price which could be currently realized for these wools. However, to accommodate you, Barkey was willing to advance $ 9,000 which we calculate represents an advance of about 90% on a price basis of 70 cents per lb. C. & F. clean, and which is the same price as our current contracts.

  'We might point out that you have never given us the total weights of these 142 bales, and we had to inquire with the Steamship Company, who told us that their manifest showed these 142 bales of gross 34,171 lbs. It was on that basis we made our calculations.' (Plaintiff's Exh. 72).

  (3-8) Radiogram, dated July 12, 1950, from Kitching to Barkey, contained the following excerpt:

  'Documents Hundredfortytwo Bales In Hand Deliver Nine Grand Murad'. (Plaintiff's Exh. 98).

  (3-9) Radiogram, dated July 14, 1950, from Barkey to Kitching, commenced as follows:

  'Yours Twelfth Nine Grand Murad Doing Needful.' (Plaintiff's Exh. 99).

  (3-10) Contract (confirmation of purchase) dated August 2, 1950, between Barkey and Alexander Smith & Sons Carpet Co. This contract was for the purchase from Barkey of 131 bales of white wool and 7 bales of #2 white wool weighing approximately 30,000 net clean lbs. at the price of 91 cents per net clean lb. regardless of color. This wool was ...


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