Airco, Inc. v. United States

Richardson, Judge:

Macalloy Corp., the successor to Airco, Inc., in Charleston, S.C., seeks to be substituted as party plaintiff in the above-mentioned action. The defendant opposed the substitution, contending in substance that because the transfer documents do not recite specifically that “a chose in action” is being transferred to Macalloy Corp. it cannot be substituted for Airco, Inc., in this litigation.

It is clear from plaintiff’s exhibit A, “Agreement For Purchase and Sale of Assets,” and exhibit D, “Bill of Sale” of Airco, Inc.’s plant which was producing high-carbon ferrochrome at its Charleston, S.C., facility; exhibit 1, “Affidavit of Angelo N. Tarallo, Assistant Vice President of Aireo, Inc.”; exhibit 2, “Affidavit of Hanno D. Mott, Secretary and Director of Macalloy Corp.”; and the other exhibits submitted by counsel for Aireo, Inc., that the right of Macalloy Corp., to be substituted for Aireo, Inc., in this action was included in the bill of sale.

The bill of sale recites “that all assets * * * whether now owned or hereafter acquired, whether tangible or intangible, * * * are sold to the purchaser.” A company’s claim being made in pending litigation at the time the company is sold is an intangible asset. Exhibit G to the agreement for purchase and sale specifically mentions this litigation.

Mr. Tarallo of Aireo, Inc., in his affidavit, states that he was a principal negotiator and draftsman for Aireo, Inc., of the agreement of sale and “that (1) it was the intent of Aireo, Inc., to convey its interest, rights, and obligations in this litigation, subject to the court’s approval, to Macalloy Corp. and to no one else; and (2) Aireo, Inc., has not retained any ferrochrome inventory or other interest in, ferrochrome. Aireo, Inc., is not at this time a manufacturer, wholesaler, or producer of ferrochrome.”

Mr. Mott of Macalloy Corp., in his affidavit, asserts that “* * * it was the clear intent of the parties that all of the assets, properties, and business of Airco’s Charleston operation, whether tangible or intangible * * * were to be conveyed and transferred by Aireo to Macalloy. * * * Among the assets to be transferred to Macalloy were all of Airco’s rights and interest in the above-captioned litigation.”

The excerpts from the above-mentioned exhibits make it clear that the documents of transfer purported to transfer and it was intent of the seller and purchaser to transfer from Aireo, Inc., to Macalloy Corp. all of Aireo, Inc.’s rights and interest in this litigation and that it is appropriate that Macalloy Corp. be substituted for Aireo, Inc., as party plaintiff.