United States v. D. C. Andrews & Co. of La., Inc.

CONCURRING OPINION

Donlon, Judge:

I concur in the result on the ground that appellees (plaintiffs below) have shown that there were, at the relevant times, free offerings in Belgium of similar merchandise for export to the United States at the prices found by the trial judge for such merchandise. This is stated in his opinion, but not in his findings.

I am of opinion that appellant rightly alleges error in the finding below, as fact, that such merchandise was freely offered, at the principal market in Belgium, to all purchasers for export to the United States.

The cases7 at bar illustrate the difficult problems which the court encounters in litigation subjected to protracted delay. These are 27 appeals to reappraisement. The merchandise at bar was imported at various times during 1954 and 1955. It was not appraised until August 1957. Thereafter, notwithstanding repeated urgings by trial judges sitting in Hew Orleans, the appeals were not brought to trial until 1963.

Such delays afford opportunity for memory to play tricks even on disinterested witnesses. Sometimes time has been known to color the recollection of those with a stake in litigation. Whether this is so here, we need not inquire, for the record is reasonably clear.

My colleagues, in the majority opinion, refer to a letter of Regniers dated December 11, 1953, to Heartland. A letter of that date is in evidence, plaintiff’s exhibit 11. There is no other letter of such date in evidence. Exhibit 11 states “that our manufacturers have fre-viously supplied some American Public Services with consignments of cables fully agreeing with Technical data prescribed by above notice.” [Emphasis added.]

This statement as to sales made at some time previous to December 11, 1953, to some American purchasers, seems to me not to be evidence establishing, or indeed even corroborating, free offerings to all American purchasers at the time of exportation of the merchandise at bar, in 1954 and 1955.

'What is evident, from documents contemporaneous with the transaction, is that appellee (plaintiff below) ordered merchandise from Regniers subject to a condition, among others, that appellee should be given the exclusive representation of Regniers (selling agents) and “of the supplying manufacturers for the States of Mississippi, Louisiana and Alabama.” (Exhibit A, letter of February 4, 1954.) To be *800sure, this letter was addressed, not to Regniers, but to the Director in New Orleans of the Commercial Office of Belgium, through whom Regniers had offered to sell to appellee steel wire rope in reels, of stated specifications. Thereafter, on suggestion of the Director, communication between the parties was direct. Regniers confirmed directly to appellee entry of its order that had been tendered through the Belgian Commercial Office on stated terms, adding: “We also confirm our agreement to the various points raised in your letter of the 4th of February.” (Exhibit A, letter of March 13,1954.)

Less than a year after importation, on June 13, 1955, and again in August, 1955, Customs Agent John M. Hooe interviewed Mr. Paul Hoots, Jr., office manager of appellee, who said that Heartland had the exclusive sales rights from Regniers in Louisiana, Alabama and Mississippi, although there is no “formal contract.” (Exhibit A.)

Nearly 10 years later, testifying at the trial, Mr. Clay Calhoun, sole owner of Heartland, said that he did have an “understanding” with Regniers for exclusive representation in the three above-named states, but he proffered as his opinion (although not shown to be a lawyer) that this understanding was not “legally binding.” (R. 35.) While Mr. Calhoun said he knew that Regniers offered like wire rope to others in the United States, he was not asked and he did not say that he knew that Regniers made such offerings to others in the states of Louisiana, Mississippi and Alabama. That is the nub of the case. Sales or offers elsewhere in the United States are not significant.

Nor does the March 19, 1963, affidavit of Mr. A. Keller, chef de service of Regniers since 1958, make any claim that the records of Regniers which he examined show any sales (or offerings) in Louisiana, Mississippi and Alabama to others than Heartland during 1954 and 1955. (Exhibit 12.)

Thus the record as a whole shows an order, made subject to the condition that exclusive representation be granted in these three states, accepted by the seller with agreement to that condition; a categorical affirmation of such exclusive representation by Heartland’s office manager directly after the event, when facts were fresh in memory and there was no pending litigation; and no evidence whatever that Reg-niers ever sold, or even offered to sell, in Louisiana, Mississippi and Alabama to any one save Heartland.

I find it unnecessary to enter into discussion of the legal principles of contract, although it is my view that acceptance of a conditional offer to buy with express agreement to the condition, is a contract. However, the statute we are called upon to construe does not require “a binding contract,” nor do the cases. The test is whether, at the pertinent times, the market was in fact restricted. Here, on the weight of credible evidence, there is shown to have been an understanding, *801conceded on trial by appellee, if not an agreement, for exclusive representation in a tri-state area, and there is no showing that this understanding was not honored. The proofs before us do not bring the facts within those cases cited in which like arrangements were not honored.

Geographical restriction, in fact, on sales prevents our finding that there were free offers to all in the United States who might wish to buy. Hulse Import Co. v. United States, 29 Cust. Ct. 504, Reap. Dec. 8181.

For the reasons stated I concur in the result, but not in the findings of fact or the conclusions of law.