The opinion of the court was delivered by: MOTLEY
Companhia Geral De Comercio, formerly known as Ferris-Buarque, S.A., sued American Airlines for $584,008.57 for commissions allegedly due from American upon the sale of Electra aircraft. Suit was filed in the Supreme Court of the State of New York, New York County. The action was removed, by defendant, to this court pursuant to Title 28, U.S.C. § 1441. After trial of this action in October, 1967, this court enters these findings of fact and conclusions of law absolving defendant of any liability to plaintiff.
Plaintiff is a Brazilian corporation. Haroldo Buarque de Macedo is its principal officer. (Both will be referred to as "Buarque").
Pursuant to an April 14, 1960 agreement, Buarque was appointed American Airlines' "exclusive agent for the sale of Aircraft" in Brazil. "Aircraft" was defined to mean Douglas DC-6/6A/6B and Convair CV-240 aircraft only. This agreement did not cover the sale of Electras. The agreement could be amended only by a writing.
The REAL consortium ("REAL") was composed of Real S/A-Transportes Aereos; Nacional-Transportes Aereos, S.A.; and Empresa de Transportes Aerovias Brasilia, S.A. REAL was owned principally by Linneu Gomes.
Jorge Carnicero was chief executive of Air Carrier Service Corporation ("Air Carrier"). Carnicero had been part owner, with Gomes, of a Brazilian airline. He sold his interest in this airline to REAL when pressure was put on non-Brazilians to relinquish control of Brazilian airlines. As part of this transaction, Carnicero's corporation, Air Carrier, was made REAL's agent for the purchase of aircraft. (REAL was to buy 85% of its aircraft through Air Carrier). Carnicero, at one time, had been partners with Buarque. Buarque and Carnicero had "fallen out". Buarque would not do business with Carnicero and vice versa.
Buarque, by the end of September, 1960, learned that REAL was interested in acquiring Electra-type aircraft. He sent letters, on September 30, 1960, to Braniff Airlines, American Airlines and Paschall International Corporation ("Paschall") inquiring about the availability of surplus Electras. Paschall was a U.S. corporation which had an agreement with American to dispose of American's surplus aircraft. The letters sent by Buarque were all virtually identical.
On the same day, Buarque teletyped a similar request to Mark Aero Supply, Inc. of Miami, Florida. In none of these communications did Buarque reveal that REAL was the prospective purchaser.
Paschall did not reply to Buarque's letter. Braniff and Mark Aero Supply replied in the negative. American sent an affirmative response, on October 6, 1960. It stated:
CONFIDENTIAL. We hope that you will be able to work on this Electra problem as quickly as possible and Mr. Cup Grady is planning on being in Rio around the 20th of October to discuss this further with you. Please do not wait for his arrival but start your discussions as soon as possible. American Airlines, at the present time, would not like to have it known that their airplanes are for sale so in your discussions with any Brazilian airlines I think it would be wise to just state that you are offering airplanes from a leading United States Certificated airline operator and, if negotiations get to the serious stage, we will undoubtedly have to reveal who the seller will be.
The first job is to get the customer to the point of negotiation for the Purchase. When that point arrives, American will assist you personally for the closing.
Congratulations on your activity.
This letter was not intended, by either party, to modify the April 14, 1960, agreement to include Electras as "Aircraft" within the scope of Buarque's exclusive agency. Buarque, after receiving this letter, met with REAL's director, Alvarenga to ...