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ATLAS S.S. CHARTERING CORP. v. DILLINGHAM CORP.

June 4, 1970

ATLAS STEAMSHIP CHARTERING CORPORATION, Plaintiff,
v.
DILLINGHAM CORPORATION and Hawaiian Tug & Barge Co., Ltd., Defendants


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

MEMORANDUM

TENNEY, District Judge.

 By complaint dated April 3, 1969, plaintiff Atlas Steamship Chartering Corporation (hereinafter referred to as "Atlas") commenced an action against each of the above-named defendants demanding $30,000 in damages for defendants' alleged failure to pay a 3 per cent brokerage commission to plaintiff pursuant to the terms of a contract, the existence of which is vigorously disputed by defendants.

 From the papers and exhibits before me, it appears that on January 27, 1969 Frank O. Garson, president of Atlas, wrote to Mr. C. Riddle, vice president in charge of marketing of Hawaiian Tug & Barge Co., Ltd., (hereinafter referred to as "Hawaiian") a wholly-owned subsidiary of co-defendant Dillingham Corporation (hereinafter referred to as "Dillingham"), inquiring whether he had a barge for sale that would meet enumerated specifications. Mr. Garson indicated that he had a "live inquiry" from an undisclosed client and therefore requested that Mr. Riddle send "full specifications, [a] photo, and [the] lowest price for a cash deal. * * *" *fn1"

 On February 11, 1969, Mr. Riddle responded to Mr. Garson's letter and, with considerable specificity, described a barge that Mr. Garson's customer could consider for a cash price of $1,000,000.00, delivery in Honolulu, Hawaii. Mr. Garson was informed, however, that the defendants "would have to complete some of * * * [their] commitments in order to set a release date for the * * * [barge]." *fn2"

 On February 12, Mr. Riddle again wrote to Mr. Garson to confirm a telephone conversation between them the same day. In this letter, defendants again informed plaintiff that the commitments for the barge were currently uncompleted and that they were waiting for a response from the present charterers, as to "whether they [intended] to go further with the charter or * * * [intended to] terminate". *fn3"

 On February 13, Garson telegraphed Riddle confirming the same telephone conversation. This telegram contained the first reference to the disputed 3 per cent commission allegedly owed defendants by the plaintiff herein, and indicated that the commission was to be paid when the deal was consummated, and that the transaction was subject to survey and drydocking. *fn4"

 Four days later, Garson again wrote Riddle setting forth the entire February 13 telegram which, as previously indicated, contained the first reference to the brokerage commission. In the last paragraph of the letter Garson admitted that he had not yet received confirmation of the agreement and that he expected to hear from the defendants as to when he could "expect delivery in the event the deal * * * [was] consummated." *fn5"

 Later the same day, Riddle telegraphed Garson that "Charterers extending contract therefore * * * [barge] not available for sale at this time". *fn6"

 On February 19, in response to another telegram from Garson, Riddle reemphasized the previous understanding that any sale arrangement was to be subject to the existing charterers' decision as to whether or not they intended to continue the charter. *fn7"

 In a final attempt to keep the embers glowing, Garson again wired Riddle inquiring as to the date the new charter expired and whether the defendants would sell the barge subject to the renewed charter party. *fn8" Riddle responded on February 25, informing Garson that no such arrangements could be made. *fn9"

 Plaintiff, relying on the above-cited events and communications, sues for a brokerage commission claiming that: 1) Dillingham offered to sell a specific barge for $1,000,000.00; 2) that acting as a broker in the transaction it produced a buyer; 3) that defendants agreed to pay plaintiff a commission of 3 per cent of the barge's selling price; and 4) that Dillingham refused to consummate the sale arranged by Atlas. Alternatively, plaintiff sues in quantum meruit to recover the reasonable value of the services that it rendered.

 Defendants, urging various grounds in support of their motion, move pursuant to Fed. R. Civ. P. 56 for summary judgment dismissing plaintiff's action.

 The second, third and fourth grounds proffered by defendants in support of this motion raise genuine issues of fact concerning the existence of the agreement and the terms, conditions and documents relating thereto. *fn10" ...


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