This action was brought by Paul Hammond, a citizen of the State of New York, H. Donald Harvey, a citizen of the State of Connecticut, and Carter M. Braxton, a citizen of the State of New York, copartners doing business under the firm nаme of The Hammond, Harvey, Braxton Company, against the C. I. T. Financial Corporation, organized under the laws of the State of Delaware, for breach of a contract giving Braxton (hereafter sometimes rеferred to as the plaintiff) the exclusive right to sell defendant’s wholly owned subsidiary corporation, known as the Holtzer-Cabot Division. Federal jurisdiction was invoked because of diversity of citizenship, the amount in contrоversy exceeding $3,000.
The facts as found by the district court sitting without a jury may be summarized as follows:
In January 1948 the defendant decided to sell its wholly owned subsidiary, Holtzer-Cabot. On January 27, the defendant’s vice-president Urquhart approached Brax-ton with a view to enlisting his services in finding a buyer. The plaintiff was given the exclusive right to negotiate the sale of the Holtzer-Cabot assets. All inquiries were to be referred to him by the defendant, and all negotiatiоns were to be conducted by him. His fee was to be five per cent of the first two million dollars of the sales price with lesser percentages upon amounts received in excess of that sum, but the plaintiff agreed to discuss an adjustment of his fixed commission in the event of “unusual circumstances” attending the sale. The defendant was given the right to terminate the contract at any time it was dissatisfied with the plaintiff’s efforts. The parties decided that no written contract was necessary. The plaintiff, who was engaged in the business of acting as broker in the sales of going concerns, prepared a prospectus which he sent to prospective buyers and in some *707 instances where interest was manifested, he exhibited the plant to the prospect.
On April 13, 1948, Braxton brought a prospective buyer to Urquhart’s office. Some interest was indicated on the part of this prospect but no offer was made. Following this interview Braxton was informed by Urquhart that an inquiry had been made on behalf of Redmond Company and that if the company showed any interest, it would be turned over to Braxtоn. On April 21 the latter was told by Urquhart that an offer of $1,000,000 had been made for the plant and inventory by this prospect and that this offer was the subject of pending negotiations. Braxton said that his late participation in the nеgotiations which had been initiated by the defendant’s president would be futile. The plaintiff was also informed that his- position was not affected in any way, but a decrease in his compensation was discussed. Urquhart agreed to consider any offer from the prospect previously introduced by Braxton.
On May 12 the defendant closed the sale of the Holtzer-Cabot plant and inventory to Redmond Company without Braxton’s knowledge or intеrvention; the contract was executed on May 28. The price was $1,165,743.39, of which $65,743.39 was represented by promissory notes. 0,n May 17 Braxton had sent an offer from still another prospect. Later on that day he was told by Urquhart that the contract of sale was being prepared; Braxton’s commission was discussed on the theory that “unusual circumstances” had developed when the defendant had consummated the sale itself and a low price had been received. At the trial the price was admitted to be the best then obtainable and to represent the true market value. A compromise commission was rejected by the plaintiff. The рlaintiff’s brief indicates that a counter proposal for arbitration of the controversy was rejected by the defendant.
The district court further found that except for the eventual buyer all leads were referred to the plaintiff by the defendant; that the defendant never terminated its contract with the plaintiff; and that the plaintiff would have been at least equally successful in negotiating the sale. A judgment of five per cent оf the sales price was awarded, with interest from May 28, 1948, for breach of the contract giving plaintiff the exclusive right to sell the property in question.
The defendant’s first contention is that the district court erred in finding that the defеndant had given the plaintiff an “exclusive right to sell,” while agreeing not to sell the property itself. The essentially factual question as to the parties’ intention was resolved by the district court in favor of the plaintiff and we think it cannot be said to have been “clearly erroneous.” In view of the defendant’s agreement to refer all leads to the plaintiff this construction was a reasonable one. See Gaillard Realty Co. v. Rоgers Wire Works, Inc., 1st Dep’t.,
The defendant’s next contention is that the agreement was terminable at will, and was terminatеd by the sale even
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without notice to the plaintiff. Reliance is placed primarily on the Restatement of Agency, § 449(c). This section, however, relates to unilateral contracts of employment. The district сourt found that a valid bilateral contract had been formed, citing Wood v. Lucy, Lady Duff-Gordon,
The defendant also argues that the failure of the lower court to find whether or not there were “unusual circumstances” requires a reversal. It was found that the parties agreed that “in the event of ‘unusual circumstances’ attending the sale he [plaintiff] would discuss an adjustment of the fixed commission.” The defendant contends that this construction, giving it only the right which it would haye in any event of “discussing” a reduction, is unrealistic, since the defendant sought protection against unforeseen circumstances and must have intended something more. However, if as the defendant contends there was an agreement to renegotiate the commission, the existence of “unusual circumstances” would leave the defendant with no enforceable legal obligation but with an agreement to agree. Thus the finding that the parties intended only that a discussion in good faith would ensue in. the event of “unusual circumstances” is not without a reasonablе foundation and we do not think that it was “clearly erroneous.” Cf. Cohen & Sons, Inc. v. M. Lurie Woolen Co.,
We also think that the district court was right in awarding the plaintiff five per cent of the consideration of the- sale as damages for breach of the contract. Gaillard Realty Co. v. Rogers Wire Works, Inc., 1st Dep’t.,
The plаintiff appeals from the failure to award damages based on the right to sell Holtzer-Cabot’s accounts receivable. They were initially among the assets which were the subject of the exclusive arrangement between the defendant and the plaintiff. But they were not included in the assets sold by the defendant to- Redmond Company; the defendant collected them itself. We fail to understand how the defendant’s breach caused the plaintiff any loss as to the assets which were never sold. We find no obligation on the defendant’s part to include these assets in the sale, and hence the failure to refer caused the plaintiff no loss. Further, there is no proof that Braxton could have sold the accounts receivable together with the other assets had Redmond Company been referred to him.
Accordingly, the judgment is affirmed.