The question as to whether the letter was timely received, since the office of the district director is unable to locate the original letter and cannot by records attest to the date of receipt is next considered. The letter dated January 20, 1978, was answered on October 30, 1978, and was accordingly received. The office of counsel for plaintiff is in Coral Gables, Fla., and the district director is in Miami, Fla., a distance of under 10 miles, according to the Rand McNally map contained in the "Standard Highway Guide." With all due respect to the efficiency of the Postal Service, occasions do arise when properly addressed mail is delayed or diverted from its appointed course. However, there is a strong presumption that letters entrusted to the mails reach their destination in the ordinary course of time. Dunlop v. United States, 165 U.S. 486. Even considering the delays in the mails, it can be presumed that delivery was accomplished within 19 days or prior to February 8, 1978, which is 90 days from the date of liquidation. A further examination of the papers also indicates that a summons instituting the action in this court was timely filed.

The court having jurisdiction in this matter therefore denies defendant's motion to dismiss for lack of jurisdiction. This action should be noticed for trial for determination on the merits.

(C.R.D. 79-18)

AIRCO, INC., PLAINTIFF v. UNITED STATES, Defendant

Memorandum to Accompany Order

Court No. 76-3-00643

[Motion for substitution as party-plaintiff granted.]

(Dated December 19, 1979)

Frederick L. Ikenson for the plaintiff.

Alice Daniel, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch (Sheila N. Ziff on the briefs), for the defendant.

RICHARDSON, Judge: Macalloy Corp., the successor to Airco, Inc., in Charleston, S.C., seeks to be substituted as party plaintiff in the above-mentioned action. The defendant opposed the substitution, contending in substance that because the transfer documents do not recite specifically that "a chose in action" is being transferred to Macalloy Corp. it cannot be substituted for Airco, Inc., in this litigation.

It is clear from plaintiff's exhibit A, "Agreement For Purchase and Sale of Assets," and exhibit D, "Bill of Sale" of Airco, Inc.'s plant

which was producing high-carbon ferrochrome at its Charleston, S.C., facility; exhibit 1, "Affidavit of Angelo N. Tarallo, Assistant Vice President of Airco, Inc."; exhibit 2, "Affidavit of Hanno D. Mott, Secretary and Director of Macalloy Corp."; and the other exhibits submitted by counsel for Airco, Inc., that the right of Macalloy Corp., to be substituted for Airco, Inc., in this action was included in the bill of sale.

The bill of sale recites "that all assets * * * whether now owned or hereafter acquired, whether tangible or intangible, * * * are sold to the purchaser." A company's claim being made in pending litigation at the time the company is sold is an intangible asset. Exhibit G to the agreement for purchase and sale specifically mentions this litigation.

Mr. Tarallo of Airco, Inc., in his affidavit, states that he was a principal negotiator and draftsman for Airco, Inc., of the agreement of sale and "that (1) it was the intent of Airco, Inc., to convey its interest, rights, and obligations in this litigation, subject to the court's approval, to Macalloy Corp. and to no one else; and (2) Airco, Inc., has not retained any ferrochrome inventory or other interest in, ferrochrome. Airco, Inc., is not at this time a manufacturer, wholesaler, or producer of ferrochrome."

*

Mr. Mott of Macalloy Corp., in his affidavit, asserts that "* it was the clear intent of the parties that all of the assets, properties, and business of Airco's Charleston operation, whether tangible or intangible were to be conveyed and transferred by Airco to Macalloy. * * Among the assets to be transferred to Macalloy were all of Airco's rights and interest in the above-captioned litigation."

* *

The excerpts from the above-mentioned exhibits make it clear that the documents of transfer purported to transfer and it was intent of the seller and purchaser to transfer from Airco, Inc., to Macalloy Corp. all of Airco, Inc.'s rights and interest in this litigation and that it is appropriate that Macalloy Corp. be substituted for Airco, Inc.. as party plaintiff.