Von Hennig v. Kennedy , 296 F.2d 420 ( 1961 )

PER CURIAM.

The plaintiff executor of Carlo von Wedekind has appealed from a judgment of the District Court dismissing on the merits an action to recover certain property vested by the Alien Property Custodian on the ground that plaintiff’s decedent was not authorized by Section 9 (a) of the Trading with' the Enemy Act of 1917, 40 Stat. 419, as amended, 50 U.S.C.A.Appendix, § 9(a), to claim the vested property because he was resident outside the United States (in Switzerland) and doing business in Italy during the war years, and was an “enemy” as defined in Section 2(a) of the Act, 50 U.S.C.A.Appendix, § 2(a). The District Court’s findings of fact and conclusions of law are reported at 1960, 187 F.Supp. 914.¹

We bave viewed with care the record and aPPebant s contentions. We are unabIe to sa^that the District Court clearly erred in its findings or was wrong in its conclusions.

There is abundant evidence that planitiff’s decedent, the original plaintiff, exercised exclusive supervision for himself and the other owner over the firm of Carlo Wedekind & Company, a societa, in name collettivo doing business in Italy, though he may not have followed in detail the operations of the business. In addition to the matters referred to by the District Court, the record shows that he fixed the remuneration of Mueller, the firm’s manager in Italy, and insofar as ? “volved a monthly bonus of 200 Swiss francs’ Paid jt himself (apparently all d”mg tbe war years? through Fides a °W1SS firm which he dominated and controlled. As late as 1940 he advanced needed funds to the Italian firm; Mueller received instructions pr direetives for running the firm only from him; prior to the outbreak of the war in Europe, he made frequent visits to Italy to confer with Mueller about the firm’s business. It seems also that he must bave retained continuing power to revoke the authority delegated to Mueller and to aPPoint a new manager. The original Plaintiff s active supervision of the business Pperi to the war was dearly sbown exdst> and although during the war period his visits to Italy ceased and his correspondence with Mueller was perhaps more limited,² he did not show that his powers of supervision over the business were materially changed.³ And he admittedly had unlimited personal liability for the firm’s debts, malting his identity with its business even clearer.⁴ We think that under all the circumstances the original plaintiff could properly be found to be doing business in Italy during wartime, and hence to be an “enemy” under the Act. Cf. The William Bagaley, 1866, 5 Wal. 377, 72 U.S. 377, 18 L.Ed. 583.

The judgment ia

Affirmed.

1 . The Government filed a protective cross-appeal with respect to the District Court’s bolding that the original plaintiff was not doing business in Germany during the war years. In view of our conelusion on the principal appeal, it is unnecessary to decide the questions raised in tbe cross-appeal No. 16,201.

2 . The record contains two letters from Mueller to plaintiff written in 1940, one written in 1941, one written in 1942, and one written in 1943. It also contains a letter from plaintiff to Mueller written in 1941. These letters refer to others which are not in evidence.

3 . Compare Uebersee Finanz-Korporation v. Brownell, D.C.D.C.1955, 133 F.Supp. 615, 620, affirmed sub nom. von Opel v. Brownell, 100 U.S.App.D.C. 341, 244 F.2d 789, certiorari denied, 1957, 355 U.S. 878, 78 S.Ct. 141, 2 L.Ed.2d 108.

4 . A societa 'in name collettivo■ — such 'as the firm here involved — is neither a partnership nor a corporation under Italian-law, according to the testimony of the ' expert witnesses; in addition to provi- . sion for it, Italian law provides for gen- . eral partnerships, corporations limited in shares (or closely held corporations), and general stock' corporations. As the District Court pointed out, the societa has some characteristics of corporations under American law concepts, but because of its unlimited personal liability feature, it- is 'far more analogous to a partnership. "• ' ■