Full opinion text
NOONAN, District Judge. The trial of this action was commenced on October 4, 1954. At that time, a jury having been demanded, the jury was duly empaneled and sworn, and the trial proceeded before it for over two weeks. On October 19, 1954, however, because of certain remarks made by several of the jurors and brought to the attention of the court, the jury, at the request of counsel, was then dismissed. The trial was continued before the court, without a jury, pursuant to a stipulation to that effect dictated on the record at that'time by the attorneys and. to which they orally agreed in open court. Further, it was then stipulated that all of the proceedings had up to that point were to be deemed had before the court without a jury. Upon the conclusion of the trial, the submission of briefs, reply briefs and analytical computations by both parties herein, and a detailed analysis of all of the arguments and evidence in the case, this court hereby renders the following opinion in lieu of more formal Findings of Fact and Conclusions of Law. The opinion is a lengthy one because of the complexity of the case and the volume of the evidence. Since the multitude of exhibits in evidence and much of the testimony serves to indicate background and business methods as well as individual commitments by the writers thereof, much of the testimony and many of the exhibits are quoted in the opinion. Prior to the start of the trial itself the plaintiff herein had thrice altered his complaint, so that the complaint which was the basis for this trial differed considerably from his original complaint. This court normally would not. find it necessary in the writing of its decision to comment upon the amendments to a pleading; we do so now, however, because the defendant has made it abundantly clear throughout the trial and at great length in all of its briefs that it believes that the amendments constitute evidence of bad faith or worse on the part of the plaintiff. It is the opinion of this court that those amendments signify nothing of the sort. The unusually complex and multitudinous series of transactions that gave rise to this lawsuit are a sufficient cause for the complications that arose in the pleadings. Without going into the details of the complaint as finally amended, it will suffice for now to state that this suit is brought primarily for the alleged breach of certain contracts, and that the entire suit is broken down into ten causes of action by the plaintiff and two causes of action by the defendant by way of a counter-claim. This court has jurisdiction over the controversy by reason of diversity of citizenship between the parties, since the plaintiff was and is a citizen and subject of the Kingdom of Iran, and the defendant was and is a corporation organized and existing by virtue of the laws of the State of New York, and was and is doing business in the* County, City and State of New York, during all of the times pertinent' to this action. The amount in controversy is well in excess of $3,000 exclusive of interest and costs. Since, the jurisdiction of this court rests on diversity of citizenship, the law of the State of New York will apply to this action to the same extent as it would if the suit were tried in a New York state court. The action arises out of certain transactions in carpet wool between the plaintiff, an importer and exporter of divers commodities who maintained his place of business in Teheran, Iran, and the defendant, a New York corporation, whose president, Jacob A. Barkey had been engaged in the import, purchase, and sale of carpet wool for a considerable period of time in New York City. Although the plaintiff had previously done business on a large scale, the transactions that gave rise to this controversy were his first efforts in the export of wool. Two others of the more important dra-matis personae in the earlier causes of action in this case were one Randolph Valensi (also known as “Randy”), an agent of the plaintiff, and one Robert N. Kitching, formerly an agent and employee of the defendant corporation, and now deceased. During a portion of the period in which the transactions herein involved were pending, Kitching, as Barkey’s agent, went to and stayed in Teheran to consult with and advise Iravani. Valensi was engaged in the City of New York in the business of acting as a broker or agent for various exporters of wool and other commodities to the Ünited States; one of his clients was the plaintiff, Iravani. Among the occasions wherein Valensi acted as Iravani’s agent, were those involving his transactions with Barkey. Among other of Valensi’s duties with respect to his association with Iravani were the following: the making of agreements for the sale of Iranian carpet wool to be exported by Iravani, receiving pro forma or tentative as well as final statements of account in connection with the shipment of these wools to the defendant, receiving payments from the defendant for the wools so shipped, and communicating the oral and written communications of the parties to each other. At all times during the negotiations that led to this suit, there was a general custom in the use of certain terms in the business of exporting and importing wool that was well known to and understood by both the plaintiff and the defendant. The terms hereinbelow set forth were understood by the parties and are intended by the court to have the following respective meanings: (1) “Greasy wool” is wool that, at the time of its shipment to the United States, has not been washed or cleaned, and, therefore, is wool that contains a considerable quantity of impurities such as grease and dirt. (2) “Washed wool” is a wool that, before its shipment to the United States, has had some portion of its impurities removed by washing, but not by any process of cleaning. Wool is considered washed when the sheep from which it will be shorn have been driven through a stream. (3) “Clean wool” is a greasy or washed wool that, after its arrival in the United States, has been scoured and cleansed of all impurities that were pres-sent in the wool when shipped to the United States. (4) “Net lb. clean basis”, or “clean basis”, means that payment for wool is to be calculated on each pound of wool that is actually yielded by the wool when, in the United States, it is transformed into clean wool as described above. (5) “Cream wool” is wool that is not white but is a light gray in color. It is also referred to as “second white wool” or “No. 2 white wool”. (6) “Colored wool” is wool that is neither white nor cream white, but of dark color, such as black or brown. On about December 8,1949, in the City of New York, the plaintiff, through Mr. Valensi, and the defendant, through Jacob Barkey, entered into an agreement in writing, dated December 8, 1949, and accepted by Barkey on December 9, 1949, wherein the plaintiff agreed to sell and deliver to the defendant, and the defendant agreed to buy and accept from the plaintiff, about 350 tons of Iranian carpet wools, of Meshed white quality, each ton of 2,240 pounds net, consisting of 300 tons of greasy white wool and 50 tons of washed white wool at 60 cents (U. S. currency) per net pound clean basis. (Plaintiff’s Exh. 1). That contract, dated December 8, 1949, provided among other things as follows: “Yields: Seller’s estimate of yields as follows: In the grease: Fifty Two Percent (52%) Washed: Seventy Two Percent (72%)”. “Shipment: From Khorramshahr, Iran, or other Iranian port direct to Port of New York, U. S. A. not later than February 15, 1950; partial shipments permitted.” In February, 1950, the above contract was verbally modified by the plaintiff and the defendant to provide for the shipment thereunder by the plaintiff to the defendant of 40 tons of greasy cream Iranian carpet wool, in lieu of the 50 tons of washed white wools originally therein agreed to be shipped by the plaintiff to the defendant. This contract, as so modified, is hereinafter called the “First Written Contract”. This modification did not change the price for white wool set forth in the earlier agreement. About April 17, 1950, in the City of New York, the plaintiff, through Mr. Va-lensi, and the defendant, through Jacob Barkey, entered into an agreement in writing dated April 17, 1950, and accepted by Barkey on April 19, 1950, wherein the plaintiff agreed to sell and deliver to the defendant, and the defendant agreed to buy an(l accept from the plaintiff, ' 300 tons of Iranian carpet wools, of strictly white quality, each ton of 2,240 pounds net, consisting of 200 tons of greasy wool and 100 tons of washed wool, at 70 cents (U. S. Currency) per net pound clean basis. This contract is hereinafter called the "Second Written Contract”. (Plaintiff’s Exh. 25). The Second Written Contract provided, among other things, as follows: “Yields: Seller’s estimate of yields as follows: In the grease: Fifty Percent (50%) Washed: Eighty Percent (80%)”. “Shipment: From Khorramshahr, Iran, or other Iranian port direct to Port of New York, U. S. A. not later than June 30, 1950; partial shipment permitted.” About April 21, 1950, in the City of New York,, the plaintiff, through Mr. Valensi, and the defendant, through Jacob Barkey, entered into an agreement in writing dated April 21, 1950, and accepted by Barkey on April 25, 1950, wherein the plaintiff agreed to sell and deliver to the defendant, and the defendant agreed to buy and accept from the plaintiff, 100 tons of Iranian carpet wool, of second white quality, called “cream” per sample, each ton of 2,240 pounds net in the grease, at 60 cents (U .S. currency) per net pound clean basis. This contract is hereinafter called the “Third Written Contract”. (Plaintiff’s Exh. 27). The Third.Written Contract provided, among other things, as follows: “Yields: Seller’s estimate of yield —Fifty Percent (50%)”. “Shipment: From Khorramshahr, Iran, or other Iranian port direct to Port of New York, U. S. A. not later than June 30, 1950; partial shipments permitted.” About June 30, 1950, the plaintiff and the defendant, through its agent, Robert N. Kitching, entered into an agreement in writing, in the City of Teheran, Iran, dated June 30, 1950, wherein the defendant provisionally agreed to buy and accept from the plaintiff, and the plaintiff provisionally agreed to sell and deliver to the defendant 400 tons of Iranian greasy wool, consisting of two hundred (200) tons greasy white and two hundred (200) tons greasy cream, metric ton weight; this contract is hereinafter called the “Fourth Written Contract”. (Plaintiff’s Exh. 49). The Fourth Written Contract contained among others, the following provisions : “Price: Prices are cost and freight New York, clean basis, net shipping weights. White at eighty-five (85) cents per pound. Cream at seventy-five (75) cents per pound.” “Shipment: During July/August from Iran”. The Fourth Written Contract also contained certain other express provisos, to wit: “Remarks: As mentioned above, this sale is contingent upon you completing your present outstanding contracts to us and credit for this purchase will not be opened until this condition has been met.” (The “credit” referred to a letter of credit). “The matter of the amount of the letter of credit, whether 80% or 90%, will be discussed with Mr. Va-lensi and the amount which is finally agreed upon will then become one of the terms of this contract.” These four formal written contracts constitute the clearest of the agreements between the parties and form at least the basis for most of the causes of action herein. Up to this point, there is little controversy as to what these contracts say or mean. At this juncture, the court wishes to point out that, on the basis of the printed record in this case, both the plaintiff and the president of the défendant-corporation have made inconsistent statements. Accordingly, in reaching a decision, this court must rely to a relatively greater degree on the documentary evidence introduced at the trial, and on that testimony of the witnesses which is hostile to their own interests. We turn now to the specific causes of action. First Cause of Action The plaintiff’s first cause of action is based on an alleged amendment of the First Written Contract as referred to earlier. The plaintiff asserts that this contract was further modified in August of 1950 by verbal agreement, as indicated by various documentary evidence, to provide for a higher price for certain of the shipments amounting to an additional 10 cents per net pound clean basis. This the defendant denies. The shipments on which the plaintiff claims this extra ten cents per net pound clean basis are those which were shipped on the following voyages: (1) S.S. Lemsterkerk-Westerdam which arrived in the port of New York on July 17, 1950; (2) S.S. Steel Designer, which arrived in the Port of New York on July 20, 1950; (3) S.S. Laackerk-Westerdam which arrived in the Port of New York on September 13, 1950; (4) S.S. Lindekerk-Averdyk which arrived in the Port of New York on November 4, 1950. In examining into the alleged contract modifications, the following evidence, is in the record: (1-1) The contract of December 8, 1949, required shipment “not later than February 15, 1950”. (Plaintiff’s Exh. 1). (1-2) A Letter of Credit was issued on December 12, 1949, pursuant to the abovementioned contract and specified the price at “60 cents per net lb. clean basis.” It was numbered #82037, and, to procure payment upon it, the plaintiff was required to produce, among other papers, on board ocean bills of lading which “must be dated on or before February 15, 1950”. (Plaintiff’s Exh. 60). (1-3) References in several communications from Barkey establish that Ira-vani was authorized to ship colored wool as well as the wool specifically covered by the contract. For example, the radiogram dated April 8, 1950, from Barkey to Kitching contained the following excerpt : “Colors Prices Entirely Unworkable Mills Seldom Buying Colors Stop If Iravani Cannot Sell Locally Suggest Consigning Will Make Moderate Advances And Do Best Dispose”. (Plaintiff’s Exh. 20). (1-4) Letter dated January 15, 1950, from Iravani to Yalensi containing the following paragraph: “We received your cable of January 13th wherein you urge us to ship the totality of this wool contract by early February. Since as stated, this is our first order from you and we are taking pains to make sure that the right goods are shipped, we are afraid that we will be unable to effect shipment within (sic) the required time.” (parenthesis supplied) (Plaintiff’s Exh. 8). (1-5) Letter dated February 15, 1950, from Kitching to Barkey opens with the following sentence: “I confirm telephone conversation had with Mr. Jack Barkey yesterday and from same I understand that you are extending letter of credit in favor of Iravani for an additional 60 days.” (Plaintiff’s Exh. 9). (1-6) Radiogram dated April 7, 1950, from Kitching to Barkey contained the following excerpt: “Balance Old Contract Shipment By May Fifteen Extend Credit Accordingly”. (Plaintiff's Exh. 19). (1-7) Radiogram dated April 8, 1950, from Barkey to Kitehing commences: “Yours Sixth Extending Credit.” (Plaintiff’s Exh. 20). (1-8) A letter dated April 10, 1950, from Valensi to Iravani contained the following paragraph: “Credit Extension: We understand that Barkey will proceed to extend the credit until May 15th according to the request which they received from Kitehing.” (Plaintiff’s Exh. 21). (1-9) A letter dated April 20, 1950, from Valensi to Iravani contained the following paragraph: “Old Credit: We understand that the old credit covering the first contract for 350 tons has been extended thirty days by Barkey Importing Co., Inc.” (Plaintiff’s Exh. 26). (1-10) Letter of credit numbered #83287 dated April 24, 1950, which was to cover shipments made pursuant to the Second Written Contract, and provided for payment of 70 cents per net pound clean basis for goods shipped pursuant to the Second Written Contract, contained a provision reading as follows: “This credit is not available until credit Number 82037 has been fully utilized.” (Plaintiff’s Exh. 61). (1-11) A letter dated April 28, 1950, from Kitehing to Barkey contained the following excerpt: “* * * Iravani has told me that the extension of the first credit had been made until the 30 May * * * ". (Plaintiff’s Exh. 28). (1-12) A letter dated May 26, 1950, from Kitehing to Barkey contained the following quote: “ * * * it may be necessary to again extend the first credit * * * (Plaintiff’s Exh. 37). (1-13) A letter dated May 31, 1950, from Kitehing to Barkey contained the following sentences: “Since the Steel Designer is sailing in June this will either necessitate another extension of the credit or it will be necessary to amend the second First of Boston credit to allow him to use that and he will draw on you for whatever he ships on the first credit after expiration.” (Plaintiff’s Exh. 38). (1-14) Letter dated June 6,1950, from Valensi to Iravani contained the following sentence: “Extension Letters of Credit: In accordance with your request, Bar-key Importing Co. will extend the first credit covering the first order until June 30th.” (Plaintiff’s Exh. 41). (1-15) Various communications between the parties and their agents attest to Iravani’s attempt to have the restrictive clause in the Second Letter of Credit removed. (Plaintiff’s Exhibits 38, 40, 41, 42, 44 and 45). (1-16) Radiogram dated June 19, 1950, from Barkey to Kitehing contained the following sentence: “Complying Iravani Cable To Randy To Assist Are Deleting Objectionable Clause Second Credit Stop”. (Plaintiff’s Exh. 46). (1-17) Radiogram dated June 21, 1950, from Kitehing to Barkey opened with following words: “Yours Nineteenth Received Thanks For Deletion”. (Plaintiff’s Exh. 47). (1-18) Radiogram dated August 3, 1950, from Valensi to Iravani, began as follows: “Kitehing Returning Teheran Seventh Stop Intends Returning America Thirteenth Stop Barkey Instructing Kitehing Accept All Remainder Unnegotiated Documents Stop Arrange Drawing Open Account as Heretofore Before Etchings Departure With Understanding Wools Will Be Apportioned Equally Between Two Contracts And You Will Complete Balance Wools First Two Contracts First Available Steamer * * * (Defendant’s Exh. Ki). (1-19) Letter dated August 4, 1950, from Valensi to Iravani contained the following paragraphs: “ * * * However, since Mr. Hitching, upon his return to Teheran intends to remain there until the 13th only, time has become very important. With that thought in mind, we were able to arrange to have Barkey inform Hitching to accept from you, all the unnegotiated documents still outstanding, which cover not only the shipments still afloat, but some of the wools shipped per S.S. Lemsterkerk and in fact a small quantity of wools shipped per S.S. Steel Designer. We cabled you to arrange for drawings on a cash basis as you have done in the past, delivering the documents to Mr. Hitching before his departure. We also were successful in persuading Bar-key to permit you to apportion your drawings equally between the two contracts still uncompleted. This in substance will permit you to average your prices. “It would now appear that you still owe some 350 to 400 tons under these old contracts and Barkey’s willingness to proceed was contingent upon your execution of these balances due under the old contracts by shipping them by the first available steamer for Khorramshah.” (Defendant’s Exh. K). (1-20) Letter dated August 11, 1950, to Barkey from Hitching contained the following: “Iravani is supposed to come over for a talk as soon as he comes home and I will try to get things straightened out with him. At the moment he is talking some junk about averaging all the shipments at *4 at 60 cents, % at 70 cents and y¿ at the four hundred ton price. He claims that this will help him to average and his loss will not be so great.” (Plaintiff’s Exh. 52). (1-21) A letter dated August 11,1950, from Iravani to Valensi explaining his need for a price averaging among the contracts, allowing him to deliver some of the wool called for by the higher priced contracts before requiring him to complete delivery on the first contracts, contains the following paragraph on page 5: “The request that we now have is that you please request Mr. Barkey to open the (sic) immediately the letter of credit for the last contract of'400 tons, in it’s (sic) full amount for which we shall be very grateful. Please assure him that we will only ship to the extent of the quantities we have on contract with him and not more and will only negotiate documents against his Ls/c where we have not already drawn on him directly. We hope that you will be able to persuade Mr. Barkey to accept all our shipments on the basis of 25% against the first contract of 350 tons 25% “ “ second two contracts of 300 and 100 tons and 50% “ the last contract of 400 tons until we have duly completed all of them.” (Parentheses supplied). (Plaintiff’s Exh. 53). (1-22) Letter dated August 12, 1950, from Hitching to Barkey, contains the following quotation: “Iravani has written under date of 11 August, a rather interesting letter to Valensi and I believe that Va-lensi should let you read it. It is 4% pages long and covers a lot of ground. I am too tough on him and shouldn’t tell him it isn’t honest to ship a 70 cents contract when there is still an outstanding contract at 60 cents.” (Plaintiff’s Exh. 54). (1-23) Letter dated August 28, 1950, from Valensi to Iravani contained, intei alia, a list of concessions made by Barkey to alleviate Iravani’s financial difficulties. One of these concessions is spoken of thusly: “* * * we have permitted you to invoice material under the several contracts at 60 cents and 70 cents so that you can average your prices, etc., etc.” (Plaintiff’s Exh. 55). (1-24) Letter, dated August 31, 1950, from Valensi to Iravani (marked Plaintiff’s Exh. 57) contained a reference to a letter from Barkey dated August 30, 1950, which letter was enclosed with Va-lensi’s letter in the envelope sent to Ira-vani ; Barkey’s letter included the following excerpts: “The time limit for the completion of the first two contracts has expired. The expiration on the 400 ton purchase is the end of October. We shall be looking forward anxiously to advices of shipments and in accordance with the concurrence given to Iravani’s request, shipments are to be applied one third to the first contract, one third to the second contract, and one third to the third contract * * * “Of course, in respect to the first two contracts, the time limit has expired and we shall for the purpose of facilitating the completion of the sales just mentioned accept shipments beyond the time limit on the first two purchases.” (Plaintiff’s Exh. 58). (1-25) Letter dated August 18, 1950, from Valensi to Barkey and countersigned by Barkey, contained the following sentence with reference to colored wools shipped to Barkey by Iravani and field by Barkey for Iravani’s account: “This will confirm my verbal acceptance on their behalf of your offer of 42 cents per pound, clean basis, for these wools, ex warehouse New York, in bond, for September delivery.” (Plaintiff's Exh. 74). (1-26) Radiogram apparently sent August 23, 1950, and received August 24, 1950, from Iravani to Valensi contained the following excerpt: “Does Barkey Agree Negotiate Balance Documents Lemsterkerk Designer Lindekerk Against Credit Number 82037 At Sixty Cents Being Average Seventy Cents White Forty Two Cents Colored * * * (Plaintiff’s Exh. 73). (1-27) Radiogram dated August 25, 1950, from Valensi to Iravani contained the following excerpt: “* * * Barkey Agrees Negotiation Balance Documents Lemster-kerk, Designer, Lindekerk, Under Credit 82037 If After Presentation Draft Documents Encounter Difficulty Have Bank Melli Cable First-boston For Instructions * * * (Plaintiff’s Exh. 73). (1-28) Letter dated August 29, 1950, from Valensi to Iravani contained the following paragraph: “Old Credit: This will confirm cabled advise to you that Barkey agrees to permit you to negotiate the balance of the documents covering shipments per S.S. Lemsterkerk, Designer, and Lindewkerk under credit No. 82037 in the quantities and at prices of 70 cents for white and and (sic) 42 cents for colored wools so as to make an average price of 60 cents per pound, C. & F., New York, clean basis * * * (Plaintiff’s Exh. 73). (Parenthesis supplied.) The contents of the above quote was confirmed by testimony of Barkey (S.M. p. 768). (1-29) Invoice dated December 5, 1950, and rendered, according to Iravani, after receipt of the letter of August 29, 1950 (supra fact #1-28) listed as shipped on the S.S. Lemsterkerk-Wester-dam 828 bales. The bales were mixed; that is there were bales of white wool, bales of colored wool, and bales of cream wool. (S.M. pp. 49-50). The price listed for the wool was 60 cents per net lb. clean basis, with no description of colors of wool. (Plaintiff’s Exh. 75). (1-30) Account #2 dated October 29, 1950, from Barkey to Iravani, covering shipments on the S.S. Lemsterkerk-West-erdam credited Iravani with 42 cents per net lb. 'clean basis for the colored wool, 60 cents per net lb. clean basis for the :#2 white wool, and 60 cents per net lb. clean basis for white wool. The amount of white wool for which Barkey credited Iravani at the rate of 60 cents per lb. in this shipment was 132,479 net lbs. in the grease. (Plaintiff’s Exh. 76). (1-31) Invoice dated July 6,1950, rendered by Iravani for 130 bales of white wool shipped by Iravani on the Lemster-kerk-Westerdam weighing 43,637 lbs. net in the grease. (Plaintiff’s Exh. 96). This shipment is included in the 132,-479 lbs. referred to in fact #1-30, but should be deducted from that amount because it forms a part of the second cause of action. (1-32) 132,479 net lbs. of white wool in the shipment — 43,637 net lbs. of white wool in the second cause of action 88,842 net lbs. of white wool in the grease remaining in the first cause of action. The yield, estimated in the invoice (plaintiff’s Exh. 96) to be 50% turned out to be 49.7%. (Plaintiff’s Exh. 76).’ Thus 88842 .497 621894 799578 355368 44154.474 or 44,154.5 net clean lbs. at 10 cents per net clean lb. over the price credited; this would equal $4,415.45 for that part of the wool involved in the first cause of action that was shipped on the S.S. Lemster-kerk-Wester dam. (1-33) Invoice dated December 5, 1950, rendered by Iravani for 184 bales of wool at 60 cents per net lb. clean basis shipped on the S.S. Steel Designer. No description of colors of wool. (Plaintiff’s Exh. 77). (1-34) Account #3D, dated October 31, 1950, rendered by Barkey to Iravani, covering shipment on the S.S. Steel Designer, credits Iravani with 42 cents per net lb. clean basis for colored wool, 60 cents per net lb. clean basis for white wool, and 60 cents per net lb. clean basis for #2 white wool. The white wool, amounted to 16,340 lbs. net in the grease, produced a yield of 50.7% or 8284.4 net clean lbs. (Plaintiff’s Exh. 78). (1-35) An additional 10 cents per net clean lb. over the price credited would; equal $828.44 for that part of the wool; involved in the first cause of action that was shipped on the S.S. Steel Designer. (1-36) Invoice dated December 5,. 1950, rendered by Iravani for 202 bales-of wool at 60 cents per net lb. clean basis shipped on the S.S. Lindekerk-Aver-dyk. No description of colors of wool.. (Plaintiff’s Exh. 80). (1-37) Account #10, dated January 3,. 1951, from Barkey- to Iravani, covering-shipment on the S.S. Lindekerk-Aver-dyk, credited Iravani with 60 cents per net lb. clean basis for 61 bales of white-wool on the contract of December 8,1949. This wool, amounting to 30,381 lbs. net. in the grease produced a yield of 50.9% or 15,463.9 net clean lbs. (Plaintiff’s^ Exh. 81). (1-38) An additional 10 cents per net. clean lb. over the price credited would' equal $1546.39 for that part of the wooll involved in the first cause of action that, was shipped on the S.S. Lindekerk-Aver-dyk. (1-39) Invoice dated December 5,. 1950 rendered by Iravani to Barkey, for 89 bales of wool at 60 cents per net lb. clean basis shipped on the S.S. Laagkerk-Westerdam. No description of colors of wool. (Plaintiff’s Exh. 82). (1-40) Account #6, dated November .8, 1950, from Barkey to Iravani, covering shipment on the S.S. Laagkerk-West--erdam, credited Iravani with 60 cents per net lb. clean basis for 7 bales of white wool on the contract of December 8, 1950. 'This wool, amounting to 3170 lbs. net in the grease, produced a yield of 50.21% ■or 1591.7 net clean lbs. (Plaintiff’s Exh. S3). (1-41) An additional 10 cents per net 3b. clean basis over the price credited would equal $159.17 for that part of the wool involved in the first cause of action that was shipped on the S.S. Laagkerk-Westerdam. It is well to note at this point, however, that the correspondence ■contained in plaintiff’s Exh. 73 makes no reference to wool shipment on the S.S. Laagkerk-Westerdam. (1-42) Draft drawn by Iravani against Barkey account with Bank Melli in Teheran was for amounts based on the 60¡£ flat rate regardless of color as per the abovementioned invoices rendered by Iravani on the four shipments including the S.S. Laagkerk-Westerdam. (Plaintiff’s Exh. 79). The draft was paid. Conclusory Remarks The defendant asserts in his brief that there was a fatal variance between the allegation in the pleading that the parties verbally agreed to change the purchase price from 60 cents to 70 cents for the wool sent on the four ships referred to above, and the proof of an averaging agreement. This court believes that the proof supports the pleading as to the wool shipped on 3 of the 4 ships, and further that what the defendant feels is a fatal variance is merely an enlargement of evidence based on the pleading. The averaging agreement is not a variance, it is evidence of the claim; and the plaintiff need not plead evidence. It might also be noted that, at least in this Circuit, a variance is seldom fatal unless the complaining party can show both genuine surprise and prejudice. The defendant’s other objections based on this alleged variance are believed to be without merit on the basis of the ruling on the main objection. The defendant correctly points out that the correspondence included in plaintiff’s Exh. 73 (see facts #1-26 through 1-28) makes no mention of the shipment on the S.S. Laagkerk-Westerdam, although it is mentioned in the draft (see fact #1-42). Accordingly, this court finds that, as to that shipment, the plaintiff has failed to sustain his burden of proof. While it is difficult to state at what exact point the evidence falls short of sustaining the burden of proof in this case, we believe that it has fallen short as to that shipment. The other defenses raised by the defendant (e. g., lack of consideration and Statute of Frauds) are nullified by actual shipment and receipt of the goods in question and the communications contained in Plaintiff’s Exh. 73 when looked at in the light of the whole series of transactions. Four years after performance of a contract by one party and receipt of the benefits by the other party is a poor time to raise the issue of lack of consideration in an attempt to rescind that agreement. It might even be argued that the communications contained in plaintiff’s Exh. 73 constitute a rescission of the contract containing the 60^ price and the making of a new contract containing all of the same provisions except for a, 70(é price. [See also Moore v. Scott Stamp & Coin Co., Inc., 2 Cir., 178 F.2d 3, and New York Personal Property Law, Book 40, McKinney’s Consol.Law, e. 41, § 33(2)]. Whatever occurred, the plaintiff did not “hold up” the defendant for the extra 10 cents on the shipment involved in this cause of action; the goods had already been shipped at the time the price was changed. Therefore, such a change in price would not be against public policy as it might be in the case of a “hold-up”. The communications included in Plaintiff’s Exh. 73 referred to a rate of 70 cents per lb. applicable against letter of credit #82037 (issued to cover the First Written Contract), rather than #83287 (issued to cover the Second Written Contract), against which the plaintiff would have had a right to invoice the shipments, since the restrictive clause had been deleted. The only logical reason for this permission was to raise the price to 70 cents per lb. on those indicated shipments and yet to apply the tonnage in them against the First Written Contract. To indicate its rationale in deciding this cause of action, the court wishes to point out that many of the quotations it has taken from documentary evidence were included for background purposes and that these, together with other documentary evidence, are believed to indicate: 1. that Iravani would have been bankrupted if he had been held to his agreements ; 2. that both Iravani and Barkey “sold short” in the sense that they sold goods they had under contract rather than in their possession; 3. that Barkey’s position was such that the corporation was better off financially agreeing to pay Iravani more than the original contract price to avoid forcing him out of business, securing a hollow judgment, and being compelled to pay an even higher price on the then current market for wool with which to meet his own contractual obligations. (See testimony on contract prices between Barkey and Bigelow Sanford Carpet Co. [S.M. pp. 613-626]). 4. that, therefore, Barkey did agree to pay 70 cents per net clean lb. for certain white wool shipped pursuant to what amounts to an amendment of the First Written Contract on the steamers Lem-sterkerk-Westerdam, Steel Designer and Lindekerk-Averdyk, as indicated above, but in fact only credited or paid Iravani at the rate of 60 cents per net clean lb. for this wool. The change in price represented only one of a number of transactions agreed to at that time. In view of the above facts and conclusions, as well as the conclusions which this court draws from the fact that Bar-key continued to meet the requests of Iravani, (as illustrated above) even though he was not compelled to do so, it is the opinion of this court that the plaintiff has sustained his burden of proof on that part of the first cause of action which concerns the shipments made on the Steamships Lemsterkerk-Westerdam, Steel Designer and Lindekerk-Averdyk, and should have judgment in the amount of 10 cents per lb. for the number of net clean pounds computed above as per facts ##1-32, 1-35 and 1-38, or $6,790.28 unless that amount was included in subsequent agreement of settlement which possibility will be determined in the court’s analysis and decision of the settlement causes of action. Second Cause Of Action Turning now to the second cause of action, we note that it is composed of two parts or series of shipments; one under an alleged half-and-half arrangement, and the other under a straight delivery in accordance with the Second Written Contract. These shipments may be broken down further as follows: (A) Shipments allegedly made pursuant to the Second Written Contract and not claimed to be covered by the alleged half- and-half agreement were those on board the steamships: 1. Steel Apprentice, sailing July 2nd, and arriving September 7, 1950; 2. Steel Designer, sailing June 4, and arriving July 20, 1950; 3. Lemsterkerk-Westerdam, sailing May 21, and arriving July 7,1950; 4. Lindekerk-Arkeldyk, sailing August 3, and arriving October 6, 1950. (B) Shipments allegedly made pursuant to a half-and-half agreement were those on board the steamships: 1. Steel Designer, sailing September 20, and arriving November 2, 1950; 2. Steel Artisan, sailing August 24, and arriving October 4, 1950; 3. Lissekerk-Alblassadyk, sailing August 19, and arriving October 21,1950; 4. Steel Apprentice, sailing November 23,1950, and arriving January 4, 1951. The sailing dates are taken from the plaintiff’s main brief which differs slightly from the list of steamers (Plaintiff’s Exh. 256) introduced for the convenience of the court. The voyages being thus identified, the exact dates are immaterial. In this cause of action, the plaintiff seeks an additional 100 per net clean lb. for white Iranian wool which he alleges was shipped pursuant to the Second Written Contract at 70}! per lb., and which the defendant asserts was applicable to and paid for in accordance with the First Written Contract at the price paid of 60}! per lb. Accordingly, the main fact for the determination of the court is which contract the parties intended these wool shipments to fulfill. Resuming our earlier method of listing some of the pertinent documentary evidence and conclusions drawn therefrom, we note the following: (2-1) Radiogram dated April 7, 1950, to Barkey from Kitching began as follows: “Iravani Interested New Business May June Hundred Tons Washed Two Hundred Greasy White Seventy Five Clean Fifty Black Thirty Eight Fifty Medium Grey Fifty Five Fifty Mixed Forty Five Wire Acceptance Or Counteroffer Stop”. (Plaintiff’s Exh. 19). (2-2) Radiogram dated April 8, 1950, from Barkey to Kitching contained the following language: “100 Tons Washed 200 Tons Greasy White If Can Depend May June Shipment Absolutely Authorize Close Seventy Cents Clean”. (Plaintiff’s Exh. 20). (2-3) Radiogram dated April 13,1950, from Iravani to Valensi opened as follows : “Yours Nineth Confirming Two-hundred Tons Greasy Onehun-dred Tons Washed Seventy Cents”. (Plaintiff’s Exh. 23). (2-4) Second Written Contract, as described in the introductory portion of this opinion. (Plaintiff’s Exh. 25). (2-5) Letter of Credit #83287 dated April 24, 1950, issued for wool purchased through the Second Written Contract with a price of 70}! per net clean lb. indicated. (Plaintiff’s Exh. 61). (2-6) Letter dated April 10, 1950, from Valensi to Iravani, in discussing possible new business (which ultimately became the Second Written Contract), advised as to a proper profit for Barkey as follows: “However they certainly are entitled to net a few cents per lb. and that would mean a gross of close to 5(! per lb.” (Plaintiff’s Exh. 21). See also contract prices between Bar-key and Bigelow-Sanford Carpet Co. (S.M. pp. 613-626). (2-7) Letter dated August 30, 1950, from Barkey to Valensi asking that Va-lensi communicate certain information to Iravani. Valensi forwarded this letter to Iravani together with a letter of his own (Plaintiff’s Exh. 57). Barkey’s letter contained the following quote: “You were very kind to let us read several of Mr. Iravani’s letters, the contents of which were very carefully noted. From the reading of such letters, we got the impression that Mr. Iravani feels we have benefited in a very large way because of the perpendicular price advance in Wools. This is not the case, however. We are not speculators and our profits in sales that we made to mills against our purchases were only very nominal as they always are when trading in raw materials.” (Plaintiff’s Exh. 58). (See also contract prices between Bar-key and Bigelow-Sanford Carpet Co., S.M. pp. 613-626)! (2-8) Summary sheet prepared by employee of Bigelow-Sanford Co. indicated a contract with Barkey for Iranian wool. The contract was dated March 14, 1950, was for white Iranian wool shipped aboard the “S.S. Steel Artisan” and the “S.S. Steel Apprentice”, and was to be paid for at the rate of 75 cents per net clean lb. (Plaintiff’s Exh. 257). Transactions leading to the above contract for 75 cents per net clean lb. of wool purchased from Iravani indicate the reason why Barkey may have been willing to let Iravani ship at 70 cents rather than requiring him to ship at 60 cents. The radiograms leading to this situation are as follows: (a) Radiogram dated March 7, 1950, from Barkey to Kitching: “Bigelow Willing Buy Half Quantity Iravani Purchase Seventy Five Cents Clean Shipment March April From Khorramshar Telegraph If Safe Assume Commitment Can We Depend Shipment At Least Such Quantity.” (Plaintiff’s Exh. 15). (b) Cable dated March 9, 1950, from Kitching to Barkey: “Yours Seventh Would only Sell Amount Actually Declared Although Iravani Should Ship At Least Half Of Total Quantity.” (Plaintiff's Exh. 16). (c) Cable dated March 10, 1950, from Barkey to Kitching began as follows: “Sold Bigelow Fifty Tons Wool Iravani Stop”. (Plaintiff’s Exh. 17). Another possible motivating factor in allowing shipment at the higher price was the fact that Barkey knew Iravani had turned down even higher prices offered by others because he wished to complete his obligations to Barkey. (Plaintiff’s Exh. 40). (2-9) Cable dated June 2, 1950, from Kitching to Barkey contained following phrase: “Iravani Shipping on Designer Instead Leopoldskerk”. (Plaintiff’s Exh. 65). (2-10) Cable dated June 12, 1950, from Iravani to Valensi contained the following excerpt: “To Recover Our Losses Requesting Sell Threehundred Tons At Present Market Price”. (Plaintiff’s Exh. 66). (2-11) Cable dated June 12, 1950, from Valensi to Iravani began as follows: “Unclear Why Iranian Banks State Second Boston Credit Useless-When Valid Condition Complete-First Contract Which .Understand Accomplishing Designer.” (Plaintiff’s Exh. 67). (2-12) Letter dated June 15, 1950', from Valensi to Iravani, contained, inter alia, reasons why Barkey at that time would not delete the limiting clause in-2nd letter of credit; and reasons why Valensi cannot undertake to sell more wool while Barkey commitments were still outstanding. (Plaintiff’s Exh. 68). (2-13) Radiogram dated June 15, 1950, from Iravani to Valensi, contained' the following: * * * “But As Losses Unsupportable Arrange Barkey Accept. Half All Future Shipments Against Contracts And Half To Sell Our Account Assure Fulfill All Contracts by Fifteenth July” * * * (Plaintiff’s Exh. 103). (2-14) Letter dated June 16, 1950, from Kitching to Barkey contained the following sentences: “Evidently Iravani wants to make future shipments on a basis of half against contracts and half for own account and these latter to be sold at the going market. His story is that he will, in spite of half for own account, be able to finish the contracts by 15 July.” (Plaintiff’s Exh. 45). (2-15) Radiogram dated June 19‘, 1950, from Barkey to Kitching, and' referring to shipments of wool which form a portion of the subject matter of this cause of action, contains the following request: “Attend Immediately Airmailing Documents Lemsterkerk Designer”. (Plaintiff Exh. 46). (2-16) Radiogram dated June 21, 1950, from Kitching to Barkey, contains the following excerpt: “Iravani Advises Will Ship Half At Sixty Half Seventy And Will Complete Contracts Within Thirty Days Stop”. (Plaintiff’s Exh. 47). (2-17) Letter dated July 1, 1950, from Kitching to Barkey contains the following reference to the shipment referred to in #2-15: “The expected weight lists together with commercial invoice on the 133 bale lot Steel Designer are not going in this mail.” (Plaintiff’s Exh. 50). (2-18) Invoice dated July 6, 1950, for 133 bales of greasy white wool invoiced at 70 cents per net clean lb. shipped on the S.S. Steel Designed. (Plaintiff’s Exh. 94). (2-19) Account #3, dated November 20, 1950, issued by Barkey to Iravani covering 133 bales of white wool shipped on the S.S. Steel Designer, and credited to Iravani at 60 cents per net clean lb. (Plaintiff’s Exh. 95). The 133 bales amounted to 62,036 net lbs. in the grease which produced a yield of 46.27% or 28,-704.1 net scoured lbs. which were credited to Iravani at the rate of 10 cents per net clean lb. lower than the invoiced amount. If Iravani’s contention is correct that this white wool should have been paid for at the rate of 70 cents per net clean lb., then he should receive $2,-870.41 in recompense for the underpayment. (2-20) Radiogram dated July 6, 1950, from Barkey to Kitching, includes the following: “Also Anxiously Awaiting Report Whereabouts B/L Thousandthree Bales Ex Lemsterkerk”. (Plaintiff’s Exh. 97). (2-21) Radiogram dated July 12,1950, from Kitching to Barkey includes the following excerpt: “Yours Sixth Am Following Shipments * * * Lemsterkerk * * * Iravani Delivering Documents approximately Twentyseven Tons Lem-sterkerk Requesting Seventeen Grand Will You Accept.” (Plaintiff’s Exh. 98). (2-22) Radiogram dated July 14,1950, from Barkey to Kitching contained the following excerpts: “Yours Twelfth * * * Twenty-seven Tons Lemsterkerk Answering Monday”. (Plaintiff’s Exh. 99). (2-23) Letter dated July 7,1950, from Valensi to. Iravani contains the following excerpts: “You seem to lose track of the fact that Barkey Importing Company contracted with you for the delivery of these wools back in December of 1949, which is some seven months ago. They as yet, have not received delivery of the wools for which they contracted, with the exception of some 75 tons of off-grade wools received on the SS Steel Artisan. They themselves, resold these wools and have already incurred heavy losses because of their default with the buyers here.” “If you require new credits to assist you in obtaining advances from the banks in Teheran, it is a very simple thing for you to obtain. All you have to do is complete the existing contracts and you have solemnly promised time and time again that these would be completed by June 30th, and now, not later than July 15th, which is only one week away.” (Plaintiff’s Exh. 72). (2-24) Letter dated July 19, 1950, from Valensi to Iravani contained the following excerpts: “We acknowledge with thanks, receipt of your three letters of July 14th and copies of weight lists and invoices on part of the wools shipped per the SS. Lemsterkerk and the SS. Designer. At the same time, we wish to confirm our cablegram of July 18th per enclosed copy.” “400 Tons “We have continued to attempt to secure for you, a new letter of credit to cover the last sale of 400 tons. I now feel that Barkey can be persuaded to open up a credit before all of these contracts are completed, provided that a very substantial portion of the contracts are completed. I calculate that if as indicated, you effect shipment of 150 tons on the Laagkerk and another 150 tons on the Steel Apprentice, that Barkey ■will open up the new credit even though some 100 to 150 tons are still due him under the old contracts. This is, however, a very delicate matter. Regardless of the reasons why you desire this new credit, you are certainly not so naive as not to realize that you could very easily utilize immediately the new credit for the wools which- were bought under the old contracts and thus be realizing an. average of 800 per lb., on wools which were transacted at a time when the market levels were at 600 and 700 per lb. It is for these reasons that no new credit would be opened until the bulk of the old wools were delivered and the documents covering these wools were surrendered. This is even more imperative since your cablegram of the 5th of July, disturbed greatly the faith which the buyers had been reposing in you. And, as we have indicated in our letter to you, faith is the essential part of any business transaction.” “27 Tons: “We understand that it has been your desire to surrender documents covering 27 tons, directly to Mr. Kitehing, against payment here of $17,000. Up until yesterday, when we received your invoices covering these 27 tons, we had no idea what this represented. Now that we received the copy of the invoices we were able to explain to Barkey how these $17,000 that you requested were arrived at. It was lack of information which prompted Barkey to counteroffer $15,000, since they did not know anything of the types and colors of these 27 tons. In the event this counteroffer has not already been accepted, we believe that Barkey, with new information on hand, will gladly and promptly advance the original $17,000 requested.” (Defendant’s Exh. G). (2-25) Radiogram dated July 20,1950, from Barkey to Kitehing contained the following: “Thousandthree Bales Lemster-kerk Discharged Examined Together With Randyfound Approximately One-third Shipment Contains Dark-colors”. (Plaintiff’s Exh. 71)- (2-26) Invoice dated July 25, 1950, rendered by Iravani for 154 bales of white wool @ 700 per net clean lb. shipped on the S.S. Steel Apprentice. (Plaintiff’s Exh. 84). (2-27) Radiogram stamped as received August 1, 1950 from Kitehing to Barkey contains the following: “Documents In Hand In Order Thirtytwo Tons White Apprentice Seventy Cents Deliver Ten Grand Each” etc. (Plaintiff’s Exh. 85). (2-28) Radiogram dated August 1, 1950, from Barkey to Kitehing contained the following: “Have Done Needful Thirtytwo Tons White Apprentice Airmail B/L”. (Plaintiff’s Exh. 86). (2-29) Invoice dated August 8, 1950, rendered by Iravani for 300 bales of wool (out of a 346 bale shipment) shipped on the S.S. Steel Apprentice of which 34 bales are invoiced at 70 cents per net clean lb. and 266 bales are invoiced at 60 cents per net clean lb. (Plaintiff’s Exh. 87). (2-30) Invoice dated August 8, 1950, was rendered by Iravani for 51 bales white and 38 bales cream greasy wool shipped on the S.S. Steel Apprentice, with the white invoiced at 70 cents per net clean lb. and the cream at 60 cents per net clean lb. (Plaintiff’s Exh. 88). (2-31) Account #4 dated October 16, . 1950, rendered by Barkey to Iravani covering wool received on the Steel Apprentice covered the following bales: 51 bales white 154 bales white 34 bales white Total 239 bales of Iranian white wool amounting to 119,670 net lbs. in the grease which produced a yield of 47.9% or 57,321.9 net scoured lbs. which were paid for at the rate of 60 cents per net clean lb. The account also credits Ira-vani with 60 cents per net clean lb. for 304 bales (38 plus 266) of No. 2 white wool. (Plaintiff’s Exh. 89). If Iravani’s contention is correct, that the white wool should have been paid for at the rate of 70 cents per net clean lb., then he should receive $5,732.19 in recompense for the underpayment. (2-32) Radiogram dated August 3, 1950, from Valensi to Iravani and quoted in fact #(1-18) in that portion of this opinion dealing with the first cause of action. (Defendant’s Exh. Ki). (2-33) Letter dated August 4, 1950, from Valensi to Iravani,- and quoted in fact #(1-19) in that portion of this opinion dealing with the first cause of action. (Defendant’s Exh. K). (2-34) Radiogram stamped as received August 9, 1950, from Kitehing to Barkey contained the following: “Have Documents Covering Twen-tytwo Tons White Seventy Cents And Seventysix Tons Cream Sixty Cents All Steel Apprentice Ninety Percent Value Fiftyfour Thousand Deliver Thirtyfive Grand Murad And Confirm.” (Plaintiff’s Exh. 90). (2-35) Radiogram dated August 9, 1950, from Barkey to Kitehing contained the following: “Yours Eighth Thirtyfive Grand Murad Have Done Needful Airmail Documents Immediately Stop Have Not Yet Received Documents Thirty-two Tons Apprentice.” “What Are Iravani’s Intentions Regarding Three Hundred Tons Balances Due Old Contracts”. (Plaintiff’s Exh. 91). (2-36) Letter dated August 11; 1950, from Kitehing to Barkey contained the excerpt included as #(1-20) in the opinion of this court on the first cause of action, and also the following paragraph: “Enclosed herewith are two bills lading covering the 35 grand you have just paid Murad. These are going in today’s pouch and additional copies will go by international mail on Saturday and these you should have by Wednesday. These are bills of lading numbered 56 and 57 Steel Apprentice. No. 56 covers 300 bales, 34 bales of White and 266 bales of Cream. No. 57 covers 51 bales White and 38 bales Cream. Actually on this bill of Lading 94 bales were shipped but some are coloured, these he did not draw against.” (Plaintiff’s Exh. 52, also 92). (2-37) Letter dated August 11, 1950, from Iravani to Valensi contained the following excerpts: “In our recent discussions with Mr. Kitehing concerning our contracts of wool with Barkey, it has been most depressing to us to be told by him such things as, for instance, that it is dishonest on our part to invoice shipments at 70^ while still having outstanding contracts at 60^. Or, ‘When do you want to complete the first contract? Where is your wool? Why haven’t you, etc. In this manner you will spoil your reputation’ and general talk of this nature, always running us down. “My reply has been, ‘All you say is quite true. Nevertheless, I feel that we are quite honest in our dealings with you * * * ’. “I, therefore, requested him, for the sake of humanity, not to put us into serious difficulties by forcing us to complete the whole of our 60^ contract first. This can only be achieved in the present state of affairs, by gradual shipments in combination with the second and the last contract of 400 tons. * * * “It would be cruel and inconsiderate if you persisted in your aforesaid demands. It would seem that you want your goods no matter if we are obliterated by delivering them to you in the manner you demand * * *. “Despite all' the foregoing difficulties and losses, we have borne them and will continue to bear them with the hope that we will be repaid for them in the future. But, if Mr. Barkey is not more lenient with us in the present difficult circumstances with the'will to help us, as we are only working for him here, we would lose all hope of deriving any benefit from him in the future in recompense for the losses we have so far undergone. “When signing the last contract, we proposed to Mr. Kitching as a help to us, that our shipments be taken as 25% against the 1st. contract, 25% against the second two contracts and 50% against the last contract of 400 tons, to enable us to get a better average price on the whole. Mr. Kitching fully realized our position and cabled our aforesaid suggestion to Mr. Barkey. * * * “Now we see from your telegram of the 3rd that Mr. Barkey is insisting that we first ship our first two contracts at 600 and 700 respectively and then come to the 850 contract. From the explanations we have already given to you in this letter, you will appreciate that this is an impossibility and if we were to do a thing like this at this stage it would simply mean going headlong into bankruptcy. As stated we must combine all our shipments against all our contracts in the percentages proposed by us to get a reasonable average price. “We hope that you will be able to persuade Mr. Barkey to accept all our shipments on the basis of 25% against the first contract of 350 tons 25% against the second two contracts of 300 and 100 tons and 50% against the last contract of 400 tons until we have duly completed all of them.” (Plaintiff’s Exh. 53). (2-38) Letter dated August 12, 1950, from Kitching to Barkey, contained the following excerpts: “Enclosed herewith are three bills lading, Nos. 55, 56 and 57 of the Steel Apprentice. “Iravani has written under date of 11 August, a rather interesting letter to Valensi and I believe that Valensi should let you read it. It is 4% pages long and covers a lot of ground. I am too tough on him and shouldn’t tell him it isn’t honest to ship a 700 contract when there is still an outstanding contract at 600. I have told Iravani all along to take the contracts in order and finish •them in the same order they were booked.” (Plaintiff’s Exh. 54). (2-39) Radiogram dated August 18, 1950, from Kitching to Barkey, contained in part the following: “Documents In Hand Twentyseven Tons White Lindekerk Seventy Cents * * *” (Plaintiff’s Exh. 101). (2-40) Invoice dated August 15, 1950, rendered by Iravani covered 101 bales of white wool estimated at 60,767 net lbs. in the grease, invoiced at 70 cents per net clean lb. and shipped aboard the S.S. Lindekerk-Arkeldyk. (Plaintiff’s Exh. 102). (2-41) Account #9 dated December 18, 1950, rendered by Barkey to Iravani covering 110 bales white and 25 bales cream wool shipped on the S.S. Linde-kerk-Arkeldyk. The white wool weighed 61,003 net lbs. in the grease, produced an average yield of 43.015% and resulted in 26,240.4 net clean lbs. for which Barkey credited Iravani at 60 cents per net clean lb. (Plaintiff’s Exh. 100). If Iravani’s contention is correct, that this wool should have been paid for at the rate of 70 cents per net clean lb., then he should receive $2,624.04 as a recompense for the underpayment. (2-42) Account #9A dated December 30, 1950, rendered by Barkey to Iravani informed him that one bale previously counted as colored wool turned out to be white wool. This bale, shipped aboard the S.S. Lindekerk-Arkeldyk, was given a pro-rata value (per account #9) of $143.-13. Thus, if Iravani was underpaid on that account, he was similarly underpaid on this one. As Barkey credits him at 60 cents rather than the 70 cents that Iravani claims, if the latter is correct, the added value of the bale would be one-sixth of $143.13, or $23.86 (Plaintiff’s Exh. 100A). (2-43) Radiogram stamped as received August 24, 1950, from Iravani to Valensi included the following quote: “Shipped Lissekerk Fifty Tons White Quantity Artisan Still Unknown”. This radiogram also contained the excerpt quoted in fact #(1-26) of the opinion of this court in the first cause of action and which the court believes is pertinent here also. (Plaintiff’s Exh. 73). (2-44) Radiogram dated August 25, 1950, from Valensi to Iravani contained the quotation used in our opinion on the first cause of action, fact #(1-27), and pertinent here also. (Plaintiff’s Exh. 73). (2-45) Letter dated August 29, 1950, from Valensi to Iravani containing the quotation used in our opinion in the first cause of action, fact #(1-28) and pertinent here. (Plaintiff’s Exh. 73). (2-46) Invoice dated July 6, 1950, rendered by Iravani for 45 bales of Greasy Meshed wool shipped aboard the SS Lemsterkerk. The estimated net weight in the grease was 15,602 lbs.; the estimated yield was 52% and the invoice price was 60 cents per net clean lb. (Defendant’s Exh. E). In pencil at the top of this invoice, Barkey has noted that he paid $17,000 for the 45 bales therein together with the 130 bale lot. [See fact #2-49] (infra). (2-47) Invoice dated December 5, 1950, referred to in fact #(1-29) in our opinion on the first cause of action and pertinent here. (Plaintiff’s Exh. 75). (2-48) Account #2 dated October 29, 1950, which is referred to in our opinion as fact #(1-30) in the first cause of action and pertinent here. (Plaintiff’s Exh. 76). (2-49) Invoice dated July 6, 1950, referred to in our opinion as fact #(1-31) in the first cause of action and pertinent here also (Plaintiff’s Exh. 96). It is well to note here that this shipment (invoiced at 70 cents per net clean lb.) is specifically deducted from the whole shipment involved in the first cause of action on the ground that it forms a portion of the second cause of action. It amounts to 43,637 net lbs. of white wool in the grease with a yield of 49.7% as per plaintiff’s Exh. 76 and fact #(1-32) in the first cause of action. In pencil, at the top of the invoice (Plaintiff’s Exhibit 96) Barkey has noted that he paid $17,000 for the 130 bales of wool invoiced thereon together with a 45 bale lot (see fact #2-46 supra). (2-50) Thus, multiplying the net lbs. of greasy wool (43,637) by the resultant percentage yield of clean wool (49.7%), we arrive at the figure of 21,687.589 or 21,687.6 net clean lbs. which remain as forming a portion of the wool on which an additional 10 cents per net clean lb. is claimed. If Iravani’s contention is correct that he should have been paid for this wool at the rate of 70 cents per net clean lb., then he should receive $2,168.76 in recompense for the underpayment. (2-51) The letter dated August 28, 1950, from Valensi to Iravani was in answer to Iravani’s letter of August 11, 1950, to Valensi. In this letter Valensi, in p