177 F. 458 | S.D.N.Y. | 1910
(after stating the facts as above). It is the settled law of the state of New York that the plaintiff must show a cause of action to the satisfaction of the judge with reasonable certainty. Section 636 of the New York Code; Ladenburg v. Commercial Bank, 87 Hun, 269, 83 N. Y. Supp. 821. It is not enough that the complainant merely alleges a cause of action. Wallace v. Baring, 21 App. Div. 477, 48 N. Y. Supp. 692. Of the four causes of action the three first are based upon the contract of January 14, 1909, and the fourth is upon a' quantum meruit. The first cause of action is based upon the plaintiff’s performance of the contract, especially upon performance of the phrase:
“The above sUpulated. commission shall be yours * * * if we have in any manner whatsoever utilized (or made call upon) your assistance or services at the sale or in the proceeding leading up to the same.”
The plaintiff does not assert that he had anything to do with the negotiations with the General Electric Company after January 14, 1909, which resulted in the contract, tie asserts that he is entitled to his commissions because the defendant utilized, his former assistance and services at that sale and in the proceedings leading up to the same. I do not think it necessary to determine whether the phrase “in Ansprucli genommen” means “utilized” or whether it means “called upon,” for I am not satisfied that it contemplated past acts of the plaintiff, or that the defendant meant to pay him if it made use of any of the work which he had hitherto done.
The second cause of action is upon the theory that he did assist in the sale because it was through him that the Kuzel interests Were brought into the combination. I find no evidence in the correspond
“What Dr. Just ought to do personally is to take up my plan of consolidation direct with the Von Bolten and Kuzel interests if it is possible to get them to consent to the plan * * * and this should be done as soon as possible.”
On January 15th Tischler wrote:
“As to tactics, you will understand that Just and Ilanaman have completed an agreement with Kuzel to co-operate.”
It is true that prior to this, and on November 2, 1908, plaintiff had written, “I can get the Kuzel interests in line”; but it nowhere appears that he did “get him in line,” or at least that he did so after January 14, 1909.
The third cause of action is for the breach by the defendant of the contract in taking up the negotiations with the General Electric Company at a time when the plaintiff had- their exclusive agency. It is a vexed question whether an agency of this sort, which is fixed in time, may or may not be repudiated by the principal in the absence of an express promise by the agent to perform any services. It is, of course, obvious that, in the absence of some implied promise at the inception of the contract, it is only a unilateral promise and’the principal may withdraw his offer, whenever he pleases; and it is well settled that, where the contract is not for a fixed time, he may do so. Rees v. Pellow, 97 Fed. 167, 38 C. C. A. 94; Sibbald v. Iron Co., 83 N. Y. 378, 38 Am. Rep. 441. When the contract is for a given time, the authorities differ. In Milligan v. Owen, 123 Iowa, 285, 98 N. W. 792, where the agency was not exclusive, it was held it might be revoked, and so it was held in Green v. Cole, 103 Mo. 70, 15 S. W. 317, provided no work had been done under it. In Bathrick v. Coffin, 13 App. Div. 101, 43 N. Y. Supp. 313, the broker had expended large sums of money in the sale of the land, but it does not appear whether the contract originally contemplated this or not. In several of the cases the matter is confused with the revocation of a power of attorney, coupled with an interest, a totally different subject. The power of the agent is certainly revocable whether the principal commits a breach of contract in so doing or not. In principle I am very clear that the agent makes no implied undertaking, and that the promise is unilateral. It is an error to suppose that the subsequent part performance of the conditions of a unilateral promise create an obligation. Either it is given at the outset for a counterpromise or it is given for the performance of the acts specified. Although the results are often unjust, they should not pervert the rectitude of such fundamental principles of law as those controlling the creation of contract obligations.
However, I am not satisfied in any event that the plaintiff has shown any damages, if there was a breach. It is necessary to prove substantial damages under the section in question, the terms of which are:
“If the action is to recover damages for a breach of contract the affidavit must show that the x>laintiff is entitled to recover a sum stated therein.”
I have assumed that the contract with Just and Hanaman created an exclusive agency between the defendant and the plaintiff, and the ground for this is contained in Tischler’s letter to him of December 18, 1908, in which he says:
“I am directed to say to you that your program is considered to be acceptable and that six. months’ commission, first of January, 1909, will be given to you and to you exclusively to realize your program.”
However, the letter of January 14th does not in terms give the plaintiff an exclusive right, and I do not wish to say that the two are necessarily to he read together or to construe the contract as giving him an exclusive right. I ain simply giving the plaintiff the benefit of this doubt, because it is well settled that without such a provision the principal could act independently. Faulkner v. Cornell, 80 App. Div. 161, 80 N. Y. Supp. 526; McClave v. Paine, 49 N. Y. 562, 10 Am. Rep. 434 ; Chilton v. Butler, 1 E. D. Smith, 150.
The fourth cause of action is upon a quantum meruit. Thi§ depends upon the theory that it was through the plaintiff’s efforts that the contract was obtained. It is well settled that a broker’s services consist in procuring the purchaser, and that, unless he does induce in him a state of mind through which he is ready and willing to make the contract, he has failed. Probably the plaintiff procured the trip to Europe of the two representatives of''the General Electric Company, and, had the contract been consummated at that time, he would possibly have earned his commissions, whatever they were worth. That question would depend upon his original employment by the defendant for that purpose, a question not wholly dear in the papers. If he was a volunteer, and had not been employed, he could not recover. In the view 1 take of the other facts, it is not necessary to determine whether or not he was ever employed as broker before January 44, 1909.
From the correspondence in the fall and winter of 1908, it appears that the .parties supposed the negotiations with the General Electric. Company were over, and that they were negotiating for combination of all the interests into an independent syndicate, which would, when formed, either compel the General Electric Company to come to terms, or stop its infringements. I certainly am not satisfied that the subsequent negotiations and completion of the contract between February 28 and April 15, 1909, were in any sense a continuation of the original negotiations of the summer, or procured by the plaintiff, and I am fortified in this conclusion, in that his chief reliance is the contract of January 14, 4909.
Of course, when the plaintiff comes to present his case in a tribunal which has jurisdiction of the defendant, k may well be that he can succeed in clearing up any of the difficulties which T have suggested, but where, as here, it is necessary that he should satisfy the judge in
I must therefore grant the motion, and vacate the attachment.