Rayward v. Silbermann

Citation356 F.2d 611
Decision Date10 February 1966
Docket NumberNo. 147,Docket 29951.,147
PartiesJohn L. RAYWARD, Plaintiff-Appellant, v. Joachim SILBERMANN, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

A. Hayne DeYampert, New York City (White & Case and Thomas McGanney, New York City, on the brief), for plaintiff-appellant.

Milton S. Gould, New York City (Shea, Gallop, Climenko & Gould and Martin I. Shelton, New York City, on the brief), for defendant-appellee.

Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

LUMBARD, Chief Judge:

John L. Rayward appeals from a judgment for the defendant, Joachim Silbermann, in a diversity action wherein he sought to recover compensation for services as a finder either under an oral contract or in quantum meruit. The trial judge dismissed the contract claim at the conclusion of Rayward's proof, on the ground that recovery on the oral agreement would be barred by the Statute of Frauds and because Rayward had failed to show that he had performed as he had not found the purchaser. On the second count, for quantum meruit, the jury found for the defendant. We affirm the judgment, although we disagree with the district court's finding that the Statute of Frauds was a bar to recovery on the alleged contract.

Rayward's claim arises from the sale of the assets of the Fort Wayne Corrugated Paper Company to Continental Can Company, Inc. in 1959. Fort Wayne's assets included a valuable 40% interest in Southern Paper-Board Corporation and four paper box plants, and it was obligated to purchase 40% of Southern's paper production. In 1956 Silbermann was retained by Fort Wayne to sell its assets for 2½% of the selling price. In November 1957 Silbermann was introduced to Rayward and allegedly agreed to compensate him if he could help find a buyer for the assets. Rayward produced the St. Joe Paper Co. which conducted negotiations until April 1958. Continental Can agreed to buy the assets in March 1959, and on the same day that it consummated the purchase in June it sold three of the box plants and the Southern paper contract to the St. Joe Paper Co. After Silbermann was paid his commission by Fort Wayne, Rayward claimed that it was his "find" of St. Joe which made possible the sale to Continental and Silbermann's commission. When Silbermann denied he was entitled to any part of the commission Rayward brought suit in the New York Supreme Court and Silbermann then removed the case to the federal court.

Appellant asserts the jury's verdict was against the weight of the evidence and that it was infected by numerous evidentiary rulings. He further attacks the conduct of opposing counsel and the trial judge and urges that all these errors require a new trial. We find no merit in these contentions.

There was ample evidence to allow the jury to conclude that Rayward did not perform any services of any value to Silbermann or which resulted in the sale of the Fort Wayne assets to Continental. The connection between appellant's activities in late 1957 and the final sale in 1959 is highly tenuous. There was no concrete evidence whatsoever that the find of St. Joe in 1957 had anything to do with the sale to Continental in 1959 other than speculation based on the subsequent resale to St. Joe. On the other hand there was an abundance of evidence that St. Joe had informed Silbermann in April 1958 that it did not want to purchase the assets of Fort Wayne at that time and that its eventual purchase occurred after it independently submitted the highest among several bids offered to Continental on the resale. This is more than sufficient to support the jury's conclusion that the ultimate sale was an independent development in no way related to the action of Rayward in locating St. Joe.

Appellant's attack on the trial judge for interference and bias is misplaced. The...

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1 cases
  • GEORGIE PORGIE COMPANY v. Link
    • United States
    • U.S. District Court — Southern District of New York
    • August 18, 1971
    ...Accordingly, the alleged oral contract may well be defective as contravening New York General Obligations Law, § 5-701. Rayward v. Silberman, 356 F.2d 611 (2d Cir. 1966). The second basis upon which defendants rely in opposing the instant application is that "the script being used by the de......

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