A/s Custodia v. Lessin Int'l, Inc., 503 F.2d 318 (2d Cir. 1974). · Go Syfert
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A/s Custodia v. Lessin Int'l, Inc., 503 F.2d 318 (2d Cir. 1974). Cases Citing This Book View Copy Cite
63 citation events (9 in the last 25 years) across 21 distinct courts.
Strongest positive: Lopez v. Lidl US, LLC (nysd, 2023-03-29)
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974 2000 2026
Top citers, strongest first. 40 distinct citers. How cited ↗
discussed Cited as authority (rule) Lopez v. Lidl US, LLC
S.D.N.Y. · 2023 · confidence medium
“The critical issue is not whether the charter party was signed by the party sought to be [c]harged…but whether there was a meeting of the minds of the parties as to the essential terms of the agreement, even though unsigned by one party.” A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir. 1974); see also Nat’l City Golf Fin. v. Higher Ground Country Club Mgmt.
cited Cited as authority (rule) Alfa Laval U.S. Treasury Inc. v. National Union Fire Insurance
S.D.N.Y. · 2012 · confidence medium
Co., 621 F.2d 519, 524 (2d Cir.1980)) (citing A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974)).
discussed Cited as authority (rule) National City Golf Finance v. Higher Ground Country Club Management Co.
S.D.N.Y. · 2009 · confidence medium
In accordance with ordinary principles of contract law, “[t]he critical issue is not whether the [agreement] was signed by the party sought to be charged ... but whether there was a meeting of the minds of the parties as to the essential terms of the agreement, even though unsigned by one party.” A/S Custodia v. Lessin Int’l., Inc., 503 F.2d 318, 320 (2d Cir.1974).
cited Cited as authority (rule) Ace American Insurance v. Huntsman Corp.
S.D. Tex. · 2008 · confidence medium
Co., 621 F.2d 519, 524 (2d Cir.1980); A/S Custodia v. Lessin Int'l, Inc., 503 F.2d 318, 320 (2d Cir.1974)).
cited Cited as authority (rule) Ottawa Office Integration Inc. v. FTF Business Systems, Inc.
S.D.N.Y. · 2001 · signal: cf. · confidence medium
Cf. A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974); Deloitte Noraudit A/S v. Deloitte Haskins & Sells, 9 F.3d 1060 , 1064 (2d Cir.1993).
cited Cited as authority (rule) U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co.
S.D.N.Y. · 1998 · confidence medium
Interocean Shipping Co. v. National Shipping & Trading Corp., 462 F.2d 673, 676 (2d Cir.1972); A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974).
cited Cited as authority (rule) Scone Investments, L.P. v. American Third Market Corp.
S.D.N.Y. · 1998 · confidence medium
Merritt and Co., 770 F.2d 40, 42 (3rd Cir.1985)); A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974); Fisser v. Int’l Bank, 282 F.2d 231 , 235 (2d Cir.1960).
discussed Cited as authority (rule) Smith v. Cumberland Group, Ltd.
Pa. Super. Ct. · 1997 · confidence medium
After acknowledging the plaintiffs position in that case, the Elzinga Court continued on to explain, “courts have held that an obligation to arbitrate is not necessarily limited only to those who personally signed the agreement; ordinary contract principles determine who is bound.” Elzinga & Volkers, Inc. v. LSSC Corporation, 852 F.Supp. at 690 (citing A/S Custodia v. Lessin Intern., Inc., 503 F.2d 318, 320 (2d Cir.1974)).
cited Cited as authority (rule) Bullis v. Bear, Stearns & Co., Inc.
Iowa · 1996 · confidence medium
A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir. 1974).
cited Cited as authority (rule) Reefer & General Shipping Co. v. Great White Fleet, Ltd.
S.D.N.Y. · 1996 · confidence medium
A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974); Pollux Marine Agencies, Inc. v. Louis Dreyfus Corp., 455 F.Supp. 211 , 219 n. 11 (S.D.N.Y.1978).
discussed Cited as authority (rule) Daisy Manufacturing Co., Inc., a Delaware Corporation v. Ncr Corporation, a Maryland Corporation
8th Cir. · 1994 · confidence medium
PaineWebber, Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir.1990).” “Ordinary contract principles determine who is bound by such written provisions and of course parties can become contractually bound absent their signatures_ A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir.1974), quoting, Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960).” “[Although a party is bound by an arbitral award only where it has agreed to arbitrate, an agreement may be implied from the party’s conduct. [In the matter of Keystone Shipping and Texport Oil, 782 F.Supp. 28, 30 (S.…
cited Cited as authority (rule) Elzinga & Volkers, Inc. v. LSSC CORP.
N.D. Ind. · 1994 · confidence medium
A/S Custodia v. Lessin Intern., Inc., 503 F.2d 318, 320 (2d Cir.1974).
discussed Cited as authority (rule) PMC, Inc. v. Atomergic Chemetals Corp.
S.D.N.Y. · 1994 · confidence medium
The Second Circuit has concluded unequivocally that “the question of the very existence of the [contract] which embodies the arbitration agreement is encompassed within the meaning of ‘the making of the arbitration agreement.’ ” Interocean Shipping Co. v. National Shipping & Trading Corp., 462 F.2d 673, 676 (2d Cir.1972), ce rt. denied, 423 U.S. 1054 , 96 S.Ct. 785 , 46 L.Ed.2d 643 (1976); followed in AJS Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974); Matter of Herlofson Mgmt.
discussed Cited as authority (rule) Deloitte Noraudit A/S v. Deloitte Haskins & Sells
2d Cir. · 1993 · confidence medium
While it is true that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit," United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 , 80 S.Ct. 1347, 1353 , 4 L.Ed.2d 1409 (1960), we have held that "a party may be bound by an agreement to arbitrate even in the absence of a signature.... [O]rdinary principles of contract and agency determine which parties are bound by an agreement to arbitrate." McAllister Bros., 621 F.2d at 524 (citing A/S Custodia v. Lessin Int'l, Inc., 503 F.2d…
discussed Cited as authority (rule) Deloitte Noraudit A/S v. Deloitte Haskins & Sells, U.S.
2d Cir. · 1993 · confidence medium
While it is true that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit,” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 , 80 S.Ct. 1347, 1353 , 4 L.Ed.2d 1409 (1960), we have held that “a party may be bound by an agreement to arbitrate even in the absence of a signature. ... [Ordinary principles of contract and agency determine which parties are bound by an agreement to arbitrate.” McAllister Bros., 621 F.2d at 524 (citing A/S Custodia v. Lessin Int’l, Inc.…
discussed Cited as authority (rule) Cargill International S.A., and Cargill, B v. V. M/t Pavel Dybenko, Her Engines, Tackle, Etc., in Rem Novorossiysk Shipping Co., in Personam
2d Cir. · 1993 · confidence medium
As we noted in A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974), a Charter Party is just a species of contract, subject to the same rules of interpretation as any other binding agreement.
cited Cited as authority (rule) Ziegler v. Whale Securities Co., LP
N.D. Ind. · 1992 · confidence medium
N.Y.Civ.Prac.L. & R. § 7501 (McKinney 1980); A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974); Lester v. Basner, 676 F.Supp. 481, 483 (S.D.N.Y.1987).
cited Cited as authority (rule) In Re Arbitration Between Herlofson Management & Ministry of Supply, Kingdom of Jordan
S.D.N.Y. · 1991 · confidence medium
A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974).
discussed Cited as authority (rule) Laborers International Union v. HSA Contractors, Inc. (2×) also: Cited "see"
E.D. Wis. · 1989 · confidence medium
Under the common law of agency a nonsigna-tory principal may enforce an arbitration agreement entered into between its agent and a third party, see Interbras Cayman Company v. Orient Victory Shipping Company, S.A., 663 F.2d 4, 6-7 (2d Cir.1981), or be bound by such an agreement, see A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir.1974) (per curiam).
cited Cited as authority (rule) EAST, Inc. of Stamford, Conn. v. M/V ALAIA
E.D. La. · 1987 · confidence medium
A/S Custodia v. Lessin International, *800 Inc., 503 F.2d 318, 320 (2d Cir.1974); see Valero Refining, Inc. v. M/T Laubenhom, 813 F.2d 60, 64 (5th Cir.1987).
discussed Cited as authority (rule) Diskin v. JP Stevens & Co., Inc.
D. Mass. · 1987 · confidence medium
See, e.g., McAllister Brothers, Inc. v. A & S Transportation Co., 621 F.2d 519, 524 (2d Cir. 1980) (established law of the Second Circuit is that parties may be bound to unsigned arbitration agreement); A/S Custodia v. Lessin International, 503 F.2d 318, 320 (2d Cir.1974) (Federal Arbitration Act requires written arbitration agreement; ordinary contract principles determine who is bound by written provisions); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960) (parties are contractually bound to written, unsigned arbitration agreement). 9 .
cited Cited as authority (rule) Atsa of California, Inc., Plaintiff/cross-Claimant/appellant v. Continental Insurance Co., Etc. v. Cairo General Contracting Co., Cross-Defendant/appellee. Hamed Abulhassan, Counter-Defendant/appellant v. Cairo General Contracting Co., Cross-Defendant/appellee
9th Cir. · 1983 · signal: cf. · confidence medium
Cf. A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir.1974). 19 Thus, the question is whether the district court abused its discretion when it stayed Abulhassan's action.
cited Cited as authority (rule) Atsa of California, Inc. v. Continental Insurance
9th Cir. · 1983 · signal: cf. · confidence medium
Cf. A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir.1974).
discussed Cited as authority (rule) Hartford Financial Systems, Inc. v. Florida Software Services, Inc.
D. Me. · 1982 · confidence medium
See Interbras Cayman Co. v. Orient Victory Shipping Co., S.A., 663 F.2d 4 (2d Cir.1981); In re Oil Spill by the “Amoco Cadiz”, 659 F.2d 789 , 795-96 (7th Cir.1981); McAllister Brothers, Inc. v. A & S Transportation Co., 621 F.2d 519 , 523-24 (2d Cir.1980); Interocean Shipping Co. v. National Shipping and Trading Corp., 523 F.2d 527, 539 (2d Cir. 1975), cert. denied, 423 U.S. 1054 (1976); A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir.1974) (per curiani); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960); Farkar Co. v. R.A.
discussed Cited as authority (rule) Sigety v. Axelrod
S.D.N.Y. · 1982 · confidence medium
A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir. 1974); Interocean Shipping Co. v. National Shipping & Trading Corp., 462 F.2d 673, 676 (2d Cir. 1972); Pollux Marine Agencies, Inc. v. Louis Dreyfus Corp., 455 F.Supp. 211, 217 (S.D.N.Y.1978).
discussed Cited as authority (rule) In Re the Arbitration Between Atlanta Shipping Corp. & Cheswick-Flanders & Co.
S.D.N.Y. · 1978 · confidence medium
A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir. 1974); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir. 1960); Starkman v. Seroussi, 377 F.Supp. 518, 522 (S.D.N.Y.1974).
discussed Cited as authority (rule) Fox v. Merrill Lynch & Co., Inc.
S.D.N.Y. · 1978 · confidence medium
A valid arbitration provision must be in writing, but a party may be bound by that provision without having signed an exemplar, A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir. 1974); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir. 1960).
discussed Cited as authority (rule) Tarstar Shipping Co. v. Century Shipline, Ltd. (2×)
S.D.N.Y. · 1978 · confidence medium
“The critical issue is not whether the charter party was signed by the party sought to be charged . . . , but whether there was a meeting of the minds as to the essential terms of the agreement, even though unsigned by one party.” A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir. 1974).
cited Cited "see" Reefer & General Shipping Co. v. Great White Fleet, Ltd.
S.D.N.Y. · 1994 · signal: see · confidence high
See A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974).
discussed Cited "see" Imptex International Corp. v. Lorprint Inc.
S.D.N.Y. · 1986 · signal: see · confidence high
Starkman v. Seroussi, 377 F.Supp. 518 (S.D.N.Y.1974); see A/S Custodia v. Lessin Int'l, 503 F.2d 318, 320 (2d Cir.1974); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960); ABC v. AFTRA, 412 F.Supp. 1077, 1084 (S.D.N.Y.1976). 2 .
cited Cited "see" Banque De Paris Et Des Pays-Bas v. Amoco Oil Co.
S.D.N.Y. · 1983 · signal: see · confidence high
See A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir.1974); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960).
discussed Cited "see" Comprehensive Merchandising Catalogs, Inc., a New York Corporation v. Madison Sales Corp., an Illinois Corporation
7th Cir. · 1975 · signal: see · confidence high
See Island Territory of Curacao v. Solitron Devices, Inc., 489 F.2d 1313, 1317 (2d Cir. 1973), Cert. denied 416 U.S. 986 , 94 S.Ct. 2389 , 40 L.Ed.2d 763 (1974). 17 Interocean Shipping Co. v. National Shipping and Trading Corp., 462 F.2d 673 (2d Cir. 1972) and A/S Custodia v. Lessin International, Inc., 503 F.2d 318 (2d Cir. 1974), do not suggest 5 that the substantive validity of the contract must be examined.
discussed Cited "see, e.g." Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Stucco Sys., LLC
S.D. Ill. · 2018 · signal: see, e.g. · confidence low
See, e.g. , A/S Custodia v. Lessin Int'l, Inc. , 503 F.2d 318 , 320 (2d Cir. 1974) (holding that a district court must conduct an evidentiary hearing where there are disputed issues of fact on the question of whether a non-signatory to an arbitration agreement can be compelled to arbitrate).
discussed Cited "see, e.g." Walker v. Collyer
Mass. App. Ct. · 2014 · signal: see, e.g. · confidence medium
See, e.g., A/S Custodia v. Lessin Intl., Inc., 503 F.2d 318, 320 (2d Cir. 1974); Interbras Cayman Co. v. Orient Victory Shipping Co., S.A., 663 F.2d 4, 6-7 (2d Cir. 1981) (triable question whether an agreement by an agent allegedly on behalf of the principal could afford the principal the right to compel a contracting party to arbitrate). 18 A close reading of the contemporary cases confirms that the agency exception remains confined to the acts of an agent binding a principal rather than vice versa.
cited Cited "see, e.g." Thomson-Csf, S.A. v. American Arbitration Association, Evans & Sutherland Computer Corporation
2d Cir. · 1995 · signal: see also · confidence medium
Co., 621 F.2d 519, 524 (2d Cir.1980); see also A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318, 320 (2d Cir.1974).
discussed Cited "see, e.g." Valero Refining, Inc. v. M/t Lauberhorn (Ex Trade Endeavor), Etc.
5th Cir. · 1987 · signal: see also · confidence medium
Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960) (lack of signature on charter party does not preclude valid arbitration agreement); see also A/S Custodia v. Lessin International, Inc., 503 F.2d 318, 320 (2d Cir.1974); Interpool Ltd. v. Through Transport Mutual Insurance Association Ltd., 635 F.Supp. 1503, 1505 (S.D.Fla.1985).
discussed Cited "see, e.g." Reinsurance Co. of America v. American Centennial Insurance
N.D. Ill. · 1985 · signal: see also · confidence low
Interocean Shipping Company v. National Shipping and Trading Corp., 462 F.2d 673, 676 (2d Cir. 1972); see also A/S Custodia v. Lessin International, Inc., 503 F.2d 318 (2d Cir. 1974) (issues to be decided were whether there was a meeting of the minds of the parties and the authority of the agents to bind their respective principals).
discussed Cited "see, e.g." Mcallister Brothers, Inc. v. A & S Transportation Co. (2×)
2d Cir. · 1980 · signal: see, e.g. · confidence low
See, e. g., A/S Custodia v. Lessin International, Inc., 503 F.2d 318 (2d Cir. 1974); Fisser v. International Bank, 282 F.2d 231, 235 (2d Cir. 1960).
discussed Cited "see, e.g." McAllister Bros. v. A & S Transportation Co. (2×)
2d Cir. · 1980 · signal: see, e.g. · confidence low
See, e. g., A/S Custodia v. Lessin International, Inc., 503 F.2d 318 (2d Cir. 1974); Fisser v. International Bank, 282 F.2d 231, 235 (2d Cir. 1960).
cited Cited "see, e.g." Starkman v. Seroussi
S.D.N.Y. · 1974 · signal: see also · confidence low
See also A/S Custodia v. Lessin Int’l, Inc., 503 F.2d 318 (2d Cir., June 10, 1974). 18 .
Retrieving the full opinion text from the archive…
A/S CUSTODIA, Petitioner-Appellant,
v.
LESSIN INTERNATIONAL, INC., Respondent-Appellee
1033, Docket 74-1149.
Court of Appeals for the Second Circuit.
Jun 10, 1974.
503 F.2d 318
John J. Reilly, New York City (Donald J. Kennedy and Haight, Gardner, Poor & Havens, New York City, on the brief), for petitioner-appellant., Hervey C. Allen, New York City (Burlingham Underwood & Lord, New York City, on the brief), for respondent-appellee.
Per Curiam, Smith, Timbers, Tyler.
Cited by 51 opinions  |  Published
PER CURIAM:

For the second time in as many years we have before us the propriety of a district court’s determination — on affidavits rather than after an evidentiary hearing — of disputed issues of fact with respect to the making of an arbitration agreement. See Interocean Shipping Co. v. National Shipping and Trading Corp., 462 F.2d 673 (2 Cir. 1972). As in In-terocean, we reverse and remand for an evidentiary hearing.

On October 5, 1973, A/S Custodia, a Norwegian corporation and the owner of the M/V Ferngrove, filed a petition in the Southern District of New York pursuant to Section 4 of the Federal Arbitration Act, 9 U.S.C. § 4 (1970), to compel arbitration of a controversy which had arisen under a charter party allegedly entered into on June 21, 1973 between Custodia and Lessin International, Inc., a New York corporation which was the charterer, for the transportation of a cargo of scrap from Tampa, Florida, to Taiwan. Lessin opposed the motion to compel arbitration on the ground that it had never entered into a written arbitration agreement, asserting that the alleged charter party relied upon by Cus-todia, although in writing, was unsigned.

The district court, Robert J. Ward, District Judge, without holding an evi-dentiary hearing but acting on the affidavits and briefs of the parties, on November' 15, 1973 entered a brief order denying the motion to compel arbitration on the ground that “the parties do not appear to have entered into ‘a written agreement for arbitration * * * ’ as required by the United States Arbitration Act, 9 U.S.C. § 4.” Thereafter, on December 21, 1973, the court denied Custodia’s motion for reargument, in connection with which Custodia for the first time brought to the attention of the court our decision in Interocean and requested the alternative relief of a trial on the issue of whether the parties had entered into a written arbitration agreement.

The claims as to whether there was a binding charter party, as disclosed in the papers upon which the district court acted, may be briefly summarized. Early in June 1973, Haakon Steckmest, of the brokerage firm of J. H. Winchester & Co., received a quotation from L.es-sin’s broker, Ocean Freighting & Bro[*320] kerage Corp., to transport the cargo of scrap referred to above. This quotation was circulated by cable to various correspondents of Winchester. About two weeks later, on June 20, Steckmest received an offer on this business from Custodia’s broker in Norway. The offer was conveyed on June 20 to Ocean Freighting which, on the same day, made a counter-offer on the vessel on behalf of Lessin. After the terms of the contract allegedly were agreed upon between Custodia and Lessin, Ocean Freighting prepared a form of charter party and foi'warded it under cover of a letter dated June 25 to Steckmest with the request that he have it signed by Custodia. After obtaining authority from Custodia, Winchester signed the document on behalf of the owner and returned it to Ocean Freighting for execution by Lessin. Later, Steckmest was advised by Ocean Freighting that, since Lessin was unable to obtain the scrap cargo, it refused to sign the document.

Custodia claimed $76,000 damages as a result of Lessin’s failure to perform the alleged charter party. The unsigned contract which had been forwarded under cover of the letter of June 25 contained a standard arbitration provision. Pursuant thereto, Custodia named an arbitrator and demanded that Lessin do likewise so that the controversy could be submitted to arbitration. Upon Lessin’s failure to comply with the arbitration request, Custodia filed its petition in the district court to compel arbitration. A week later, Custodia filed its motion to compel arbitration.

The foregoing recital of the claims regarding the making of the charter party, which embodies the arbitration provision invoked, indicates disputed issues of fact. The critical issue is not whether the charter party was signed by the party sought to be charged (Lessin), but whether there was a meeting of the minds of the parties as to the essential terms of the agreement, even though unsigned by one party. Since a charter party is merely a contract, it is subject to all the rules and requirements of contract law. Gilmore and Black, The Law of Admiralty 172 (1957). As Judge Hincks observed in Fisser v. International Bank, 282 F.2d 231, 233 (2 Cir. 1960):

“It does not follow . . . that under the [Federal Arbitration] Act an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision. For the Act contains no built-in Statute of Frauds provision but merely requires that the arbitration provision itself be in writing. Ordinary contract principles determine who is bound by such written provisions and of course parties can become contractually bound absent their signatures. . . .” (footnotes omitted) (emphasis added).

See also Bellmore Dress Co. v. Tanbro Fabrics Corp., 115 N.Y.S.2d 11 (Sup.Ct., N.Y.Co., 1952).

Also among the issues to be determined is the authority of the brokers to bind their respective principals — here especially the authority of Ocean Freighting to bind the charterer, Lessin. On this issue ordinary agency law applies.

In short, we hold that this case falls squarely under the provision of Section 4 of the Federal Arbitration Act, that “ [i] f the making of the arbitration agreement . . . be in issue, the court shall proceed summarily to the trial thereof.” Here, as in El Hoss Engineer & Transport Co. v. American Independent Oil Co., 289 F.2d 346, 351 (2 Cir.), cert. denied, 368 U.S. 837 (1961),

“[T]here would appear to be issues of fact .... These issues should not be determined on affidavits, but rather a full trial should be had.”

Reversed and remanded.