United States v. Michalinos Maritime & Commercial Co. ( 1958 )

Saul S. Stbeit, J.

Defendant moves for dismissal of the complaint for insufficiency. Plaintiff alleges that by a written agreement dated February 13, 1947, made on its behalf through the United States Maritime Commission as agent, with the defendant, the latter did purchase from the plaintiff a vessel at a stated price. Delivery of the vessel was made on March 6, 1947 and the stated purchase price was paid. The contract contained a provision as follows: ‘ ‘ The above purchase price of the vessel is computed as of the above date. . It is understood, if it shall be determined by the Commission upon examination of the vessel that the vessel lacks or contains desirable feature? as defined in clauses (2) and (3) of section 3(d) of the Act, that such purchase price shall be decreased, within the limits of the floor price of the vessel, or increased, by such amounts, if any, as may be determined by the Commission pursuant to said clauses, and the Buyer agrees to pay upon demand any increase in the purchase price so determined by the Commission.” It is then alleged that pursuant to the provisions of the contract plaintiff determined that the vessel contained certain equipment described as desirable features in the value of a stated sum. This is an allegation of ultimate fact. It is unnecessary to allege the determination was made by the commission since such determination would be plaintiff’s in any ease. The contention that upon payment and acceptance of the purchase price as stated in the contract any adjustment under the quoted provision is merged therein is without merit at least as a matter of pleading.

The motion is denied.