Altman v. Curtiss-Wright Corporation, 50.

• Decision Date: 08 December 1941
• Docket Number: No. 50.,50.
• Citation: 124 F.2d 177
• Parties: ALTMAN v. CURTISS-WRIGHT CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

124 F.2d 177 (1941)

ALTMAN v. CURTISS-WRIGHT CORPORATION.

No. 50.

Circuit Court of Appeals, Second Circuit.

December 8, 1941.

J. Charles Weschler, of New York City, for appellant.

Kenneth M. Spence, of New York City, for appellee.

Before L. HAND, AUGUSTUS N HAND and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff appeals from a judgment summarily dismissing his complaint upon affidavits and before answer under Rule 56(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The complaint was in two counts; the first, to recover the reasonable value of services rendered by the plaintiff to the defendant in performance of a written contract; the second, to recover for the same services on a quantum meruit. The motion was made upon two grounds: that the plaintiff had never performed the services specified in the contract; and that he had released all claims against the defendant. The district judge held that the release was final and did not consider whether the plaintiff had performed. We think that the defendant was right on both grounds, and both are open to support the judgment. Langnes v. Green, 282 U.S. 531, 535-537, 51 S.Ct. 243, 75 L.Ed. 520; LeTulle v. Scofield, 308 U.S. 415, 421, 60 S.Ct. 313, 84 L.Ed. 355.

On April 12, 1937, Altman, the plaintiff, was proposing to go to England, where he believed that he could drum up business for the defendant. He had talked with the defendant's officers, and its vice-president, Allard, sent him a letter of which the following is the substance. The company having made many tentative efforts to get business in England, "any business that may flow from those with whom the company is already in contact could not be recognized * * * as due to your efforts." Nevertheless, if in England the plaintiff could "interest those with whom the company is not in contact * * * the company * * * would recognize your assistance on the following conditions: Any proposal must be promptly communicated to the company with the names of the parties and all pertinent data. * * * If the company regards the proposal favorably, it will, in the first instance, take up with you the question of what payments, if any, are to be made to you for your services in the event that a satisfactory agreement is later effected * * * Thereafter, the company will send a representative to England who will be qualified to carry on negotiations." Commissions were to be dependent upon the defendant's entering into an agreement and "the terms of this letter" were "in any event to expire six months from date." On the 23rd the plaintiff replied that he understood all this to mean that he was to be paid for his services "regardless of whether or not sources are `otherwise known' to you or with whom you may have been in contact." On the 26th the defendant replied sharply that the plaintiff's letter was "entirely at variance" with its own — as it patently was — and on the next day the plaintiff "cancelled" his suggestion and agreed to the terms of the original proposal.

Soon thereafter the plaintiff went to England and busied himself with seeing promising prospects, among whom were Lord Swinton, then air minister, and Mr. Duff-Cooper, war secretary, but from neither of whom does he profess to have "communicated" to the defendant any "proposal." The measure of his performance was that on June 1st he cabled about a "most delightful conference with Lord Swinton" and on the next day he wrote, asking whether he should "arrange conference with Lord Swinton." Allard had cabled on that day that he would be in England during the first week of July and would see the plaintiff if he were still there. Allard did reach London on July 7th; but meanwhile the plaintiff had left for Paris, where Allard wrote him on the 14th to refuse his offer of a conference with Lord Swinton who was "already well known to us". Allard saw him once in Paris and once in Berlin, but at no time did the plaintiff "communicate" anything remotely resembling a "proposal," English, French or German, though he was profuse in such statements, as an "excellent foundation for mutual benefit," "started the ball rolling," "such headway that business can be done," "having created interest which may lead to business," "made most excellent connections" etc. etc. He returned to New York sometime before the 15th of December, two months after his contract expired, and on that day wrote asking that "the time element * * * be extended over a fair period." This Allard refused on the 20th in a letter to which the plaintiff answered that he was in negotiations which "it would not be consistent * * * to discontinue." Allard replied on January 4, 1938, that he wished "to make it entirely clear that whatever activities you are engaged in and whatever expenses you have incurred are for your own account."

Thus matters rested without further communications of any consequence between the parties until the plaintiff, on May 26, 1938, wrote a letter to the defendant's president, Vaughan, preparing somewhat covertly for a claim. Apparently they did not meet until late October of that year, and each gives a different version of what was said. The plaintiff's is that he made no "legal" claim...