223 F2d 128 Liquidating Corporation v. Brownell

223 F.2d 128



Herbert BROWNELL, Jr., Attorney General of the United States of America, Successor to the Alien Property Custodian, Appellant.

No. 11076.

United States Court of Appeals Third Circuit.

Submitted June 8, 1955.

Decided June 15, 1955.

Irwin A. Seibel, Washington, D. C. (Dallas S. Townsend, Asst. Atty. Gen., Leonard G. Hagner, U. S. Atty. for Dist. of Delaware, Wilmington, Del., James D. Hill, George B. Searls, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellant.

E. Ennalls Berl, Wilmington, Del. (Berl, Potter & Anderson, Wilmington, Del., Ernest S. Meyers, Lawrence R. Eno, Laporte & Meyers, New York City, on the brief), for appellee.

Before MARIS, GOODRICH and KALODNER, Circuit Judges.


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In this case, which was decided by this court on January 13, 1954, 209 F.2d 375, the defendant has filed a motion to recall and clarify the mandate of this court which reversed the judgment of the district court and remanded the cause with instructions to proceed in accordance with the opinion of this court. The district court in an opinion, 130 F.Supp. 691, filed April 18, 1955 rightly concluded that the issue, and the only one remaining in the case, to be tried on remand was whether the cable of acceptance of Fernseh, G.m.b.H., was sent prior to 1:10 P.M. (E.S.T.) in Washington, D. C., June 14, 1941, and hence prior to the effective time of Executive Order 8785. Under the mandate the defendant may not now assert, as he seeks for the first time to do, that the time of the completion of the contract is to be determined by the application of German law to be the time of the receipt of the cable of acceptance by the plaintiff instead of the time of its sending.


The motion will be denied.