Calkins v. FW Woolworth Co.

• Decision Date: 18 May 1928
• Docket Number: No. 7900.,7900.
• Citation: 27 F.2d 314
• Parties: CALKINS v. F. W. WOOLWORTH CO.
• Court: U.S. Court of Appeals — Eighth Circuit

27 F.2d 314 (1928)

CALKINS v. F. W. WOOLWORTH CO.^*

No. 7900.

Circuit Court of Appeals, Eighth Circuit.

May 18, 1928.

Raymond G. Young, of Omaha, Neb. (Matthew A. Hall and Harvey M. Johnsen, both of Omaha, Neb., on the brief), for plaintiff in error.

F. H. Stinchfield, of Minneapolis, Minn., and Henry Monsky, of Omaha, Neb. (Arthur F. Mullen, of Omaha, Neb., on the brief), for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

This is an action at law brought by Clifford W. Calkins against the F. W. Woolworth Company to recover damages for the breach of an alleged oral contract. At the close of the evidence in the trial below, the jury under instructions of the court returned a verdict in favor of the Woolworth Company. Judgment was entered on this verdict, and this is a writ of error therefrom.

Calkins was a real estate broker in the city of Omaha, Neb., specializing in the negotiation of long-time leases on down-town business property. Calkins testified that in 1921 he negotiated a lease from the Brandeis Investment Company to the Woolworth Company of the Boston Store building in Omaha; that in this transaction C. E. Mickler, of Minneapolis, the northwestern district manager of the Woolworth Company, represented that company; that thereafter Mickler engaged the plaintiff to act as broker for the Woolworth Company in subleasing certain portions of the Boston building; that on July 31, 1921, at Minneapolis, Mickler stated to Calkins that the Woolworth Company desired to establish a second store at Omaha, and that it wanted Calkins to secure for it a building lease therefor within a designated area in Omaha, and proposed that, if Calkins would first submit to the Woolworth Company all locations that he should find which would be suitable for the needs of the Woolworth Company, and should find a location suitable to the Woolworth Company, for lease on terms acceptable to it, it would contract for such lease through Calkins.

Calkins further testified that he accepted Mr. Mickler's proposition and agreed that he would work very hard to secure such a lease. Calkins further testified that Mickler agreed that, in the event the Woolworth Company should turn down leases submitted by Calkins, the latter might then submit them to other prospects.

Calkins further testified that thereafter, from time to time, he found locations which he thought might be suitable to the Woolworth Company, and first submitted them to that company, and that the Woolworth Company rejected all of such locations.

Calkins further testified that on June 19, 1924, he learned from John L. Kennedy, president of the United States National Bank, that the bank was desirous of leasing the first floor and basement of its bank building in Omaha; that Kennedy opened the subject by asking Calkins his opinion as a real estate man as to the rental value of the first floor and basement of the bank building; that Calkins then asked Kennedy if the bank was going to lease it; that Kennedy replied in the affirmative; that Calkins then asked him at what price; that Kennedy replied $75,000 per year; that Calkins then said, "Well, that is a fairly reasonable price; I have a prospect that I want to submit this to;" that Kennedy then replied, "Well, Mr. Calkins, we don't want too many figuring on this; we already are figuring with Kresge Company, Kress Company, and the Bedell Company;" that Calkins then advised Kennedy that his prospect was the Woolworth Company; that Kennedy expressed surprise that the Woolworth Company desired another location in Omaha; that Calkins then advised Kennedy that he had been undertaking for two or three years to secure a second location for the Woolworth Company in Omaha; that Calkins then said, "May I submit this to Woolworth Company?" and that Kennedy replied, "Well, you can submit it to the Woolworth Company, but do not submit it to any one else;" that Calkins then said, "All right, Mr. Kennedy; I will follow your instructions."

Calkins further testified that on June 19, 1924, he wrote and mailed Mickler the following letter:

"Dear Mr. Mickler: Feeling you should have all information relative to Omaha locations which comes to my attention, I am herewith advising you that the entire first floor of the United States National Bank building, at the northwest corner of Sixteenth and Farnam street, can be rented on a reasonably long time lease for approximately $75,000 per year. This building is located between the McCrory building and Farnam street and has a 74-foot frontage on Sixteenth street and is 120 feet deep on Farnam and has a basement under the entire room.

"This price includes heat.

"I have been informed by the president of the bank that the Kresge Company, the Kress Company, and the James Bedell Company of New York City are seriously figuring on this location.

"I think I have enough influence to get you the preference if you are interested and beg to state further to you that I am not in any way representing the three other parties who are now figuring on the property."

Calkins further testified that at about this time certain differences arose between him and the Woolworth Company relative to a portion of the commission on a lease of a basement by the Brandeis Investment Company to the Woolworth Company, negotiated through Calkins. Calkins further testified that on June 30, 1924, the Woolworth Company wrote him as follows:

"Dear Sir: In reply to your letter in regard to the United States National Bank building in Omaha, wish to say that we have decided not to negotiate with you for this location."

The evidence further showed that, after Calkins had submitted the United States National Bank building location to the Woolworth Company, it sent Mr. B. E. Nickoll, a real estate broker, to Omaha, to negotiate for it a lease of the bank building location and authorized him to pay a rental up to $75,000 per year; that on or about July 13, 1924, Nickoll and Henry Monsky and Kennedy reached an agreement for a lease of the bank building to the Woolworth Company at a rental of $70,000 per year; that the bank as a part of the terms of the lease agreed to pay Monsky and Nickoll, the representatives of the Woolworth Company, a commission of $15,000.

A formal written lease was executed by the bank on July 19, 1924, and by Woolworth Company August 14, 1924.

The evidence in behalf of the plaintiff further showed that Calkins, from time to time between the time the alleged oral contract was made and June 19, 1924, performed certain minor services for the Woolworth Company for which he made no charge, and that, during the time he was handling these minor matters, Mr. W. C. Allen, assistant to Mickler, thanked him for looking after such matters for the Woolworth Company, and stated, "Well, you are not getting any compensation for doing those things, but, of course, you will get your compensation when you find us the second store location at Omaha," and that Calkins replied thereto, "That is what I intend to do."

The evidence further showed that during certain negotiations for the compromise of the claim of Calkins against the Woolworth Company, B. D. Miller, vice president of the Woolworth Company, and Mickler, admitted that, if Calkins first advised the Woolworth Company that the first floor and basement of the bank building was being offered for lease, it was the duty of the Woolworth Company to negotiate for such lease through Calkins. The evidence further showed that Calkins first advised the Woolworth Company that the first floor and basement of the bank building were being offered for lease and the terms thereof.

The evidence further showed that the customary and usual broker's commission for such a lease was $37,800.

The theory of Calkins' case is that, in consideration of his agreeing to undertake to find a suitable location for a second store for the Woolworth Company in Omaha, and to prefer the Woolworth Company by first submitting to it all locations found, the Woolworth Company agreed, in the event a suitable location was found for lease on terms and conditions agreeable to the Woolworth Company, that it would lease such location through Calkins, and thereby enable him to earn and receive from the lessor of the premises the customary broker's commission therefor.

The trial court was of the opinion that the services which Calkins agreed to render were the ordinary services gratuitously rendered by real estate brokers; that the promise to render such services and the rendition thereof for that reason constituted no consideration for the promise of the Woolworth Company to lease the premises through Calkins; that Mickler, for the reasons above stated, contemplated no binding contract should arise because of the mutual promises made by the Woolworth Company and Calkins; and that the contract was unenforceable for want of consideration.

Counsel for Calkins contend that the evidence adduced established prima facie an enforceable contract, the breach thereof, and resultant damages, and that the court erred in failing to submit the case to the jury under proper instructions.

On the other hand, counsel for the Woolworth Company contend that the judgment below was right, and in support thereof assert three principal propositions:

First. Counsel for the Woolworth Company contend that the evidence failed to establish a contract. They base this contention upon the fact that Mickler denied the alleged conversation with Calkins in Minneapolis, and the further fact that in the letters which Calkins from time to time wrote to Mickler, submitting various locations at Omaha for lease to the Woolworth Company, Calkins at no time referred to the contract which he now alleges was in existence. The testimony of Calkins and the denial thereof by Mickler presented a clean-cut issue of fact for the determination of the jury, unless there was other evidence...