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April 11, 1968


The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

 Defendant moves for summary judgment, pursuant to Rule 56, Fed.R.Civ.P., on the ground that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. For the reasons hereinafter set forth, the motion is hereby denied.

 The action is for damages for the breach of two contracts for the sale of coal from the United States to the Netherlands allegedly concluded between defendant, Foreston Coal Export Corporation, as seller, and plaintiff, Koleinimport "Rotterdam" N.V., as buyer. The complaint asserts that the first contract - for the sale of approximately 50,000 tons of anthracite coal - is contained in an exchange of cables between the parties on April 4, 1963; and that the second contract - for the sale of approximately 50,000 tons of bituminous coal - is contained in an exchange of cables on April 19, 1963.

 In addition to its answer, defendant has filed in support of its motion a twenty-one page affidavit (with thirty-three exhibits attached) of Arnold L. Sabin, an officer of defendant; a three page affidavit (with three exhibits attached) of Nathan Cohen, formerly a managing director of plaintiff; a nine page statement of facts, pursuant to Rule 9(g) of the General Rules of this Court, as to which it urges there is no material issue; and two memoranda of law.

 Plaintiff, in opposing the motion, has filed a six page affidavit (with ten exhibits attached) of Henri van den Bergh, a managing director of plaintiff; a three page Rule 9(g) statement; and a memorandum of law.

 Depositions apparently have been taken in this case - a 434 page deposition of Mr. van den Bergh of plaintiff and 119 pages of depositions of Messrs. Sabin and Irving Sabsevitz of defendant - but have neither been filed nor submitted; and therefore, cannot be considered by the Court.

 It is not necessary to detail the numerous interlaced cables, letters and conversations. A chronological summary will serve the purpose of this motion.

 Negotiations with respect to the anthracite coal contract began with defendant's cable to plaintiff of April 2, 1963 [Exhibit 1 to Sabin affidavit], and plaintiff's reply cable of the same date [Exhibit 2 to Sabin affidavit]. Plaintiff argues that a contract was formed by its cable of April 4, 1963 [Exhibit A to the complaint], defendant's reply cable of that date [Exhibit B to the complaint], and a telephone conversation of April 3rd (which is referred to in its cable of April 4th). Plaintiff's cable of April 4th also refers to various terms and conditions contained in the cable exchange of April 2nd.

 On the other hand, defendant contends that, on April 4, 1963, there was no agreement as to all terms and conditions which are "essential" or "material" to this type of contract. See Brown v. N.Y. Central R.R. Co., 44 N.Y. 79, 83-84 (1870).

 Subsequent to April 4, 1963, there were numerous other cables, letters and conversations - all of which are material to the ultimate question whether a contract was concluded. Under New York law, which the Court assumes is applicable in this action based upon diversity of citizenship,* all writings which form part of a single transaction and are designed to effectuate the same purpose are to be read together, even though they were executed on different dates. Gordon v. Vincent Youmans, Inc., 358 F.2d 261, 263 (2nd Cir. 1965); Kurz v. United States, 156 F. Supp. 99, 103-104 (S.D.N.Y.1957), affirmed, 254 F.2d 811 (2nd Cir. 1958) (per curiam).

 Furthermore, the conduct of the parties, as expressed in their subsequent cables, letters and conversations, is likewise relevant to the question whether a contract had been formed. Gordon v. Vincent Youmans, Inc., 358 F.2d at 264. See 1 Corbin, Contracts §§ 95, 101 (1963).

 The parties exchanged cables on April 5, 1963 [Exhibits 6 and 7 to Sabin affidavit]. Thereafter, from April 8th to April 26th, there was a further complex of at least eight communications (including a telephone conversation on April 10th between Nathan Cohen, managing director of plaintiff, and defendant's president). The parties dispute the meaning and relevancy of some of these communications as well as the inferences reasonably to be drawn from them.

 Plaintiff concludes that these communications confirm that a binding agreement had been reached by the exchange of cables on April 4th. On the other hand, defendant concludes that these communications demonstrate that "there was no contract, either by the pleaded cables or by other communications between the parties." [Memorandum of Defendant in Support of Motion for Summary Judgment, p. 22].

 The parties also sharply contest the meaning of a series of additional communications commencing with defendant's letter of April 19, 1963 [Exhibit 13 to Sabin affidavit], which enclosed its formal written contract EX-2578, dated April 10, 1963 [Exhibit 14 to Sabin affidavit]. Attached to the contract was an "addendum" which, according to a clause on the face of the contract, was "made a valid part" of the contract with "the same force and effect as though fully set forth on the face. * * *" Plaintiff signed the contract on April 25, 1963 - within the period of time for the "BUYER" to accept - but did not sign the "addendum". The written contract was returned to defendant with plaintiff's letter of April 25th [Exhibit 15 to Sabin affidavit]. The parties exchanged further cables and letters until the final communication relevant to the alleged anthracite contract on May 21, 1963. During this period, there were allegedly oral conversations in Rotterdam on May 15th and 16th between defendant's president, Irving Sabsevitz, and assistant ...

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