Inventive Music Ltd. v. Cohen

• Decision Date: 15 February 1980
• Docket Number: No. 79-2281,79-2281
• Citation: 617 F.2d 29
• Parties: 5 Fed. R. Evid. Serv. 1097 INVENTIVE MUSIC LTD., a Corporation of New York, d/b/a Meadow Music Group, Appellant, v. Jack L. COHEN and First National State Bank of New Jersey, a Corporation of New Jersey, as co-executors of the Estate of Herman Lubinsky, Sr., Savoy Records Company Inc., a New Jersey Corporation, and its affiliated companies, Worldwide Records, Inc., a New Jersey Corporation, Medallion Songs Inc., a New Jersey Corporation and National Music Publishing Corp., a New Jersey Corporation and Columbia Pictures Industries Inc., a Delaware Corporation. . Submitted under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 29

617 F.2d 29

5 Fed. R. Evid. Serv. 1097

INVENTIVE MUSIC LTD., a Corporation of New York, d/b/a

Meadow Music Group, Appellant, v. Jack L. COHEN and First National State Bank of New Jersey, a

Corporation of New Jersey, as co-executors of the Estate of

Herman Lubinsky, Sr., Savoy Records Company Inc., a New

Jersey Corporation, and its affiliated companies, Worldwide

Records, Inc., a New Jersey Corporation, Medallion Songs

Inc., a New Jersey Corporation and National Music Publishing

Corp., a New Jersey Corporation and Columbia Pictures

Industries Inc., a Delaware Corporation.

No. 79-2281.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit Rule 12(6) Feb. 15, 1980.

Decided Feb. 29, 1980.

Stanley W. Kallmann, Gennet & Kallmann, East Orange, N. J., for appellant.

Elliott Abrutyn, Morgan, Melhuish, Monaghan & Spielvogel, Livingston, N. J., for appellee Columbia Pictures.

John C. Heavey, Laurence Reich, George C. Jones, Carpenter, Bennett & Morrissey, Newark, N. J., for appellees Cohen and First National Bank of N. J.

Before SEITZ, Chief Judge, and VAN DUSEN and GARTH, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

This is a diversity case involving questions of New Jersey law concerning finder's fees and tortious interference with economic interests. The plaintiff, Inventive Music Ltd., appeals from the district court's grant of a directed verdict at the close of the plaintiff's case in favor of the defendants Jack L. Cohen and First National State Bank (the co-executor defendants) and Columbia Pictures Industries, Inc. (Columbia).

I.

In reviewing the grant of a directed verdict, this court "must expose the evidence to the strongest light favorable to the party against whom the motion is made and give him the advantage of every fair and reasonable inference." Fireman's Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). Where there is conflicting or inconclusive evidence, it is for the trier of fact to resolve the conflict and to draw inferences therefrom. With these principles in mind, we turn to the evidence presented by the plaintiff.

In December of 1973, Jon C. Meadow, the president of the plaintiff Inventive Music, learned that Savoy Record Co. might be available for sale in the near future. Meadow called an official at Savoy and offered to act as a finder. This official told Meadow to contact defendant Jack L. Cohen, the attorney and business advisor of the owner of Savoy, who would be representing Savoy in connection with any sale. Meadow called Cohen and had numerous discussions with him. On February 25, 1974, Cohen wrote to Meadow that Meadow should not offer Savoy for sale. He added: "on the other hand, if an interested party communicates with us through you, we will recognize you as the finder."

Starting in February 1974, Meadow made several attempts to contact officials at defendant Columbia concerning a possible purchase of Savoy. On March 7, Meadow wrote to an official at Columbia. On March 18, Alan Adler, the Columbia employee in charge of acquisitions, tried to call Meadow, but Meadow was not in his office.

Meadow testified that he finally reached Adler by phone on June 28, 1974. When Adler asked what company was for sale, Meadow told him that it was Savoy. He also informed Adler that Columbia should deal with Savoy through him. Adler responded that he would have to discuss the matter with Clive Davis, a consultant of Columbia, and that he would get back to Meadow by July 12.

Adler testified in his deposition, which was introduced into evidence, that he first contacted Cohen about a possible sale of Savoy on July 9. According to Cohen's testimony, Adler told Cohen at that time that Columbia was not approaching Savoy through a finder.

On July 12, Meadow contacted Adler by phone. At that point, Adler informed Meadow that Davis had already been "working on" a Savoy purchase and that Columbia considered the purchase to be an "in-house" deal, rendering Meadow's services unnecessary.

Thereafter, on July 15, Meadow wrote to Cohen to inform him that Columbia had learned of Savoy through him, information repeated in a telephone conversation the next day. Cohen testified that he then contacted Adler and told him that if the facts in Meadow's July 15 letter were true, "you have been far from candid with me." In response, Adler told Cohen that Davis and another Columbia employee named Backer had been working on the acquisition prior to Meadow's call on June 28.

After the consummation of the sale of Savoy to Columbia, the plaintiff filed this suit to recover a finder's fee from the co-executor defendants ¹ and to recover damages from Columbia for tortious interference with the plaintiff's contract with Savoy. At the close of the plaintiff's evidence in a jury trial, the district court granted the co-executor defendants a directed verdict, stating from the bench that Meadow had not been the procuring cause of the contract. The court also granted Columbia's motion for a directed verdict without stating any reasons for its decision.

II. Co-Executor Defendants

On appeal, the defendants have conceded that the basis for the district court's order was that, as a matter of law, Meadow was not the procuring cause of the contract of sale. New Jersey applies the following test to determine whether a person has earned a finder's fee:

Ordinarily, for a broker to earn a commission . . . he must establish that he was the "efficient producing cause" in bringing about the sale at least in the sense of causing the seller to negotiate with a customer, produced by the broker, who is ready, able and willing to perform, and where the transaction is later consummated without a substantial break in the ensuing negotiations.

De Benedictis v. Gerechoff, 134 N.J.Super. 238, 339 A.2d 225, 228 (App.Div.1975). Moreover, in this context, "(w)here there is real doubt, the question must be left to the jury." Weinstein v. Clementsen, 20 N.J.Super. 367, 90 A.2d 77, 79 (App.Div.1952).

Here, the defendants claim that there is uncontradicted testimony that Davis, Columbia's consultant, was already working on an acquisition of Savoy when Meadow, the plaintiff's president, called Adler, Columbia's employee in charge of acquisitions, on June 28 and told him about Savoy. Thus they claim that Meadow could not have caused Columbia to negotiate with Savoy because the negotiations would have occurred even without his efforts.

The defendants point to two portions of testimony to support this theory. First, Adler's deposition reads: "He (Davis) told me . . . that they had been working on this for some time . . . ." Although the plaintiff objected to this as hearsay, the district court permitted it to be read to the jury.

The district court committed error in admitting this statement because it is a classic example of hearsay. The witness (Adler) testified as to what the declarant (Davis) told him, and the statement was offered to prove the truth of the matter asserted (that Davis in fact was considering a purchase of Savoy prior to Meadow's call to Adler). See Fed.R.Evid. 801(c). The defendants have pointed to no exception to the hearsay rule that would permit admission of the statement. Accordingly, this statement by Adler cannot form the basis for a directed verdict.

Second, Adler's deposition relates that Backer, a Columbia employee working with Davis, showed him some papers:

Q: Steve Backer showed you what they had done or were doing.

A: I can't say he showed me everything they had done. He gave me some, he showed me some papers and some numbers. He clearly had information and had been talking to someone.

Q: Can you identify those papers he showed you?

A: No, I don't have them. . . .

Q: Do you recall and can you identify what those papers were, were they documents, letters, agreement, what were they?

A: No, no. I think he was talking about, Steve Backer was an expert in the jazz area, I think they were lists of artists, or lists of titles, you know, his idea of what he might do with them, they were very general sort of things. I really don't know, I don't recollect any more about that than that.

Q: Other than a list of titles, do you recall any other paper or document that he showed you?

A: I don't recall but that doesn't seem to mean there wasn't something....