234 A.D. 61 | N.Y. App. Div. | 1931
Lead Opinion
Plaintiff, at the time of the trial, was a man of the age of fifty years, and for many years had been connected with the organization of the New York World newspaper, in charge of its financial advertising department. In such work plaintiff had obtained an acquaintance with many investment houses and banking institutions on Wall street and elsewhere in the city of New York. Plaintiff was born in the city of New York and resided there until he was three years of age when his parents took him to Washington, D. C., where be resided until he left college, and thereafter was a frequent visitor at Washington, his parents and sister residing in said city. Plaintiff was acquainted with a lecturer by the name of Colonel Bulkley in Washington, and learned from him that a man by the name of Nassauer was desirous of obtaining financial assistance in connection with certain properties in the city of Washington controlled by one Harry Wardman, and known as the Wardman properties. Plaintiff himself was familiar, in a general way, with these properties, which were extensive, consisting of several apartment hotels and other valuable real estate in said city. Plaintiff and his friend Bulkley conceived the idea that they, and particularly plaintiff, could be of assistance to Nassauer in obtaining the necessary financial aid from New York investment houses. Bulkley suggested that plaintiff meet Nassauer, which he eventually did, being introduced by Bulkley, and there was a discussion with reference to the desired financial aid which Nassauer sought to obtain in connection with said Washington properties. Nassauer arranged with plaintiff that he might take up the matter with certain investment banking houses in the city of New York in an effort to obtain such financial assistance. • Plaintiff was to have twenty-four hours in which to approach said banking institutions. Plaintiff knew of a corporation known as Rogers Caldwell & Co., Inc., and at once called upon said investment house and there met a Mr. Hocart, secretary of Rogers Caldwell & Co., Inc., and asked Hocart if his corporation would be interested in financing a real estate proposition somewhere in the neighborhood of Baltimore or Washington, mentioning the name of Harry Wardman. Hocart intimated that his corporation might be interested and asked for
“ Rogers Caldwell & Co., Inc.
“ Investment Securities
“ Telephone Rector 3068
“ 150 Broadway
“ Caldwell & Company
“ Nashville, Tenn.
“ Offices in
“Principal Cities
“ New York, N. Y., March 8, 1927.
“ Mr. Theodore Seckendorff,
“ Stratford House,
“ 11 East 36th Street,
“ New York City.
“ My dear Mr. Seckendorff: We are pleased to advise you that we, together with such associates as we may select, are interested in considering the proposed financing of the consolidation of so-called Wardman properties in Washington, D. C., which you brought to our attention.
“ In the event of our financing the same, we and our associates will pay you as an originating commission 1% of the par value of such securities of the consolidated company as we may purchase for distribution to the public, and 2% of any securities of the consolidated company we may receive as bonus for handling the transaction. The payments referred to are to be made to you
*65 upon termination of such syndicate as we and our associates may form.
“ It is understood, however, that if the deal should not materialize or should we decide for any reason whatsoever not to proceed therewith, we shall not be liable to you for the payment of any commissions whatsoever.
“ Assuring you that we are pleased to have you associated with us in this matter and trusting that the deal will prove mutually profitable, we are Very truly yours,
“R. H. WEBER,
Vice-President.
a ]^H\7y dCM ”
It will be noted that in this letter Weber refers to the properties to be embraced in the financing scheme as the “ so-called Wardman properties in Washington, D. C.” Prior to writing this letter Weber had inquired of plaintiff as to whether he could suggest a house suited to head a syndicate on a bond issue of $22,000,000. Respondent suggested Halsey, Stuart & Co. or Lehman Brothers as proper houses to head the syndicate. Weber agreed to approach Lehman Brothers on the subject and on doing so was informed by them that they were not interested in the proposition. Weber then called on Mr. C. B. Stuart,- vice-president of Halsey, Stuart & Co., late in March, 1927, and explained to him the Wardman proposition, giving to Stuart the names of four or five of the properties proposed to be included. • Stuart was interested and agreed to send over a representative from the buying department of Halsey, Stuart & Co. to obtain all the information possible. Mr. R. T. Reeve, a junior in the buying department of Halsey, Stuart & Co., whose function, as testified to by Stuart, was “ to find deals and negotiate them into position where they can be sent over to the sales department and sold to the public,” was sent by the defendant, appellant, to look into the matter. Reeve testified that he was instructed by Stuart to see Weber about a piece of new business, and called upon Rogers Caldwell & Co., Inc., in March, 1927. At the first meeting there was a brief discussion between Weber and Reeve concerning the matter, but the details were left to a later conference, which was arranged between them. A second conference was held shortly thereafter, at which the plaintiff, respondent, was present. At this conference Weber showed to Reeve a file of the whole matter containing data and figures regarding the various buildings to be included, such as valuation, rents received, and other naterial matters. There was included in this file a carbon copy of the letter written by Weber to plaintiff on March 8,1927. In this letter plaintiff’s compensation
The evidence clearly shows that Reeve and Weber discussed various questions presented by the data before them. It appears from a report subsequently made by Reeve that six properties were discussed in detail to be included in the financing proposition, and also that one or two other properties were discussed as possibilities, and which properties, according to Reeve’s recollection, were to be acquired from someone else and put into the deal. Reeve admits that after he took the papers from Weber he conferred with Stuart with reference thereto, and that subsequently he prepared a written report which was introduced in evidence as plaintiff’s Exhibit 7, and submitted the same to Stuart, who examined said report. This report is entitled, “ Wardman Washington, D. C. Properties,” and by the subtitle, “ Wardman Real Estate.” This set-up proved unsatisfactory to Halsey, Stuart & Co., and in Reeve’s handwriting at the bottom of his report we
“May 11, 1927.
“ Messrs. Rogers Caldwell & Company,^
“150 Broadway,
“ New York, N. Y.
“ Gentlemen: In consideration of your continuing the negotiations referred to in your letter to me dated March 8, 1927, it is agreed that the contingent compensation to which I shall become entitled under the circumstances set forth in that letter shall be modified to exclude any stock whatever, so that my ultimate compensation when earned shall be limited to the percentage of cash set forth in said letter.
“ Yours very truly,
“S/s.”
It thus clearly appears that Weber .understood that Rogers Caldwell & Co. and their associates in case there was any financing carried through, were bound to pay plaintiff his one per cent commission specified in the original letter of March 8, 1927. This
“June 17 1927
“ Mr. Fleming Newbold,
“ The Washington Star,
“ Washington, D. C.
“My dear Mr. Newbold: Our very good friend Waldemar Seckendorff has confidentially advised me that you are interested in the possibility of the Land Trust Certificate issue, which he originated, materializing, and I take great pleasure in advising you that at the present time the Bankers (which includes ourselves) having the option contemplate exercising the same some time within the next two weeks.
“ While the exercising of the option does not constitute the actual closing of the deal, the latter usually takes place some six weeks thereafter; and distribution of profits customarily takes place upon the termination of the syndicate, at which time, I am. pleased to say, Mr. Seckendorff will make a very handsome profit.
“ Yours very truly,
“ R. H. WEBER,
“ Vice-President.
„TT,T,, “ RHW /s.’
Under its terms the land trust agreement, which was dated May 14, 1927, expired in six weeks, on June 25, 1927. On June tenth the option in effect was modified by eliminating one of the pieces of property known as Cathedral Mansions, and the amount of the proposed loan reduced from $8,100,000 to $4,600,000. However,
It is urged on the part of appellant that this deal which was carried through was entirely separate, distinct and different from the deal and set-up contemplated at the time plaintiff took up the matter originally with Weber. It seems to us that that is a matter of no materiality whatever. Plaintiff was in nowise a broker. He knew nothing about the values of real" estate. He knew nothing whatever of the set-ups that were made. He merely was a finder of- this piece of business. He was to receive his compensation for finding the business and bringing the same to the attention of Rogers Caldwell & Co. and its associates. He claimed his compensation solely upon the ground that he was the originator of the business and had disclosed to Rogers Caldwell & Co. and its associates the opportunity to engage in this financing. Except for the fact that plaintiff himself had discovered this opportunity there never would have been any bond issue with reference to the Wardman properties. Plaintiff himself was alone responsible for finding this business and discovering it to defendants. The details of the financing or the properties included, so long as they were
Several questions of fact were presented to the jury for determination in an extremely fair charge by the trial court. Certainly the court, in its charge, did not favor plaintiff, but, rather, seemed to emphasize the defendants’ contentions. Indeed, the court, in instructing the jury at one point, stated: “ There is no evidence in this case of any fraud or bad faith on the part of defendant Rogers Caldwell & Company or Halsey, Stuart & Company toward the plaintiff.” We think this charge was extremely favorable to defendants, and while it became the law of the case, and the plaintiff, not excepting thereto, is bound thereby, nevertheless, we think there is evidence in the case from which the jury might have found bad faith on the part of defendants.
The court, in its charge, left it to the jury to determine whether or not Caldwell & Co. and Rogers Caldwell & Co. were, in fact, one and the same. The jury found that they were, and, under the evidence, it was justified in so finding. The court also left to the jury to say whether Halsey, Stuart & Co. became associated with Rogers Caldwell & Co. with the knowledge on its part that Rogers Caldwell & Co. had promised to pay respondent the commission mentioned in the letter of March 8, 1927, on behalf of itself and its associates. We think there is sufficient evidence justifying the jury finding such to be the fact. The court also left it to the jury to say whether the deal which was finally consummated had reference to the so-called Wardman properties in Washington, D. C., within the contemplation of the parties, and as to whether the deal which was finally consummated was a financing within the contemplation of the parties within the agreement of March 8, 1927. The court also left it to the jury to say whether or not the financing occurred within a reasonable time after March 8, 1927, when plaintiff’s commissions were fixed, and as to whether the financing which was ultimately carried through flowed directly from the information submitted by plaintiff.
As to whether there was a direct connection between the final
The court also left it to the jury to say whether or not, within the law, plaintiff was a real estate agent and as to whether his failure to obtain a license to practice as such barred a recovery. The jury found, by the verdict, that he did not occupy such position, but was merely the finder or originator of the business. We think, on all of these propositions, there was sufficient testimony to go to the jury, and that the jury was justified in returning the verdict in favor of plaintiff and against the two defendants in the sum of $110,000, being one per cent on the $11,000,000 of the bond issue.
The judgment and order appealed from should be affirmed, with costs.
Finch, P. J., Sherman and Townley, JJ., concur; O’Malley, J., dissents.
Dissenting Opinion
(dissenting). The verdict of the jury on the main issue litigated was not only against the weight of, but contrary to, the credible evidence. I am unable to discover the slightest evidence of fraud or bad faith on the part of the appellant and the court’s charge relieved it of even the implication of either. The charge in this respect was fully justified and, no exception thereto having been taken, it became the law of the case.
I, therefore, vote for reversal and a dismissal of the complaint.
Judgment and order so far as appealed from affirmed, with costs.