Julien J. Studley, Inc. v. Gulf Oil Corporation
| Decision Date | 13 February 1969 |
| Docket Number | Docket 32369.,No. 213,213 |
| Citation | 407 F.2d 521 |
| Parties | JULIEN J. STUDLEY, INC., Plaintiff-Appellant, v. GULF OIL CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Bandler, Goldstein, Kagan & Klarsfeld, New York City (Alan E. Bandler, Neal M. Goldman, Bernard L. Goldstein, Costa L. Papson, New York City, of counsel), for plaintiff-appellant.
Carb, Luria, Glassner, Cook & Kufeld, New York City (William M. Kufeld, New York City, of counsel), for defendant-appellee.
Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and FRANKEL, District Judge.*
Julien J. Studley, Inc., the plaintiff-appellant, a real estate broker, brought this diversity suit to recover from Gulf Oil Corporation, defendant-appellee, the amount of a commission plaintiff claims it would have earned upon Gulf's leasing of office space in 1962 but for a breach of contract and other wrongs allegedly perpetrated by the latter in connection with that transaction. This is plaintiff's second appeal from a dismissal of its claims by a second trial judge for what was found on both occasions to be a want of evidence. The first appeal, following direction of a verdict at the close of defendant's case, resulted in a reversal and remand for a new trial, 2 Cir., 386 F.2d 161 (1967). This time, having been allowed to go to the jury, and having recovered a verdict of $25,000, plaintiff confronts another adverse judgment after the granting of defendant's motion under Fed.R.Civ.P. 50(b) to set the verdict aside. Concluding that the verdict was a permissible one, we reverse.
The amended complaint contains three counts. The first charges a breach of contract, alleging that Gulf employed plaintiff to find suitable office space; agreed that it would designate plaintiff as the broker on any lease resulting from plaintiff's efforts; used plaintiff's services as thus agreed upon, obtaining as a result 60,000 square feet of satisfactory office space at 1290 Avenue of the Americas (the Sperry Rand Building), and executing a lease with the owner of those premises; but, despite plaintiff's performance of all the terms and conditions of the agreement, failed to designate plaintiff as broker. The second count charges interference "with the precontractual relationship" among plaintiff, Rock-Uris, Inc., owner of the Sperry Rand Building, and Cushman & Wakefield, Inc., renting agent of that building, in that Gulf denied to the other two companies that plaintiff had performed services as broker. The third count substantially repeats the second, but asserts a conspiracy among Gulf and the other two companies to accomplish the same wrong. As will be seen, only the first count interests us now.
From the evidence in the second trial as from the substantially similar record of the first, the jury could have found the following facts, among others:1
Gulf's top management, headquartered in Pittsburgh, was its six-member Executive, made up of the board chairman, president, and four executive vice presidents. In 1962 the Executive assigned Walter P. Burkhiser, then director of the Company's General Services Department and sole member of its Executive Committee for Office Standards, to survey and report upon its New York office space. Gulf at the time had three sets of New York offices, located in three widely separated buildings, with leases expiring at varying dates from 1963 to 1969.
Burkhiser analyzed the situation in a memorandum for the Executive dated September 5, 1962. Later that month, he was directed to explore the availability of space in the Rockefeller Center area with a view to possible consolidation of the offices in a single location. He called Julien Studley, plaintiff's president, and arranged to meet with him, urging that Studley keep the matter in confidence. On September 25, Burkhiser came to New York and consulted with various Gulf officials stationed there. On the following day, he met with Studley.
Studley, who had previously supplied Burkhiser with extensive information about buildings in the Rockefeller Center area, now went with Burkhiser to inspect the Pan Am and Sperry Rand buildings, both of which were then under construction. Burkhiser requested, and Studley supplied the next day, additional material on these two buildings. In the course of the discussions, Studley asked about the possibility that Gulf might move all of its office staff, including the Pittsburgh headquarters, into New York City. Burkhiser cautioned against such large projections, telling Studley he would have to be satisfied with the more limited deal they were exploring together. Earlier, Studley had voiced his appreciation over being called upon as prospective broker for the project immediately at hand. Burkhiser expressed no different understanding, either then or at any material time thereafter.
Without detailing the evidence any further, we conclude now, as we did on the prior appeal (see 386 F.2d at 165-66), that the jury had evidence ample to support a finding that Burkhiser had actual, or at least apparent, authority to enlist plaintiff's assistance and to promise a designation of plaintiff as broker in any resulting lease transaction. But, authorized or not, no such arrangement was ever consummated.
Gulf's executive representative in New York City, A. Denys Cadman, had his office in Canada House, a building managed by the real estate firm of Cushman & Wakefield, Inc. Cadman hoped to stay where he was, and pressed steadily for a decision by his superiors that would permit this. On October 22, 1962, however, at a meeting in Boca Raton, Florida, Cadman was told that the Executive had determined to consolidate the offices in the Sperry Rand Building. Knowing of Burkhiser's responsibilities in this area, he instructed his secretary to call Burkhiser in Pittsburgh and inform him that "Gulf's future interests, if any, in the Sperry Rand Building, would be conducted by Mr. Cadman with Cushman & Wakefield." Burkhiser, who had continued to keep in touch with Studley, particularly to be kept informed of current developments and expected completion times for the Sperry Rand Building, responded in a memorandum which reported his Studley contacts and observed (as he testified in the absence of the unproduced memorandum) "that there might possibly be room for some consideration for Mr. Studley."
On October 30, Gulf (represented by Cadman, Burkhiser, and an architect from Burkhiser's staff) met for the first time with the owner of the Sperry Rand Building, Rock-Uris, Inc. (represented by Bernard H. Friedman). Jacques Juncker, of Cushman & Wakefield, came to the meeting as prospective broker. After Friedman's departure, the others discussed Studley, Burkhiser repeating his thought that the latter might have grounds for a claim. Juncker and Cadman asserted that Cushman & Wakefield had "exposed" Gulf to the Sperry Rand Building before Studley's arrival on the scene. Juncker agreed, however, that Gulf would be indemnified against possible claims by plaintiff — a promise ultimately implemented by agreements for indemnity (1) from Cushman & Wakefield to Rock-Uris and (2) from Rock-Uris to Gulf.
The basic terms of the lease from Rock-Uris to Gulf were agreed upon at the October 30 meeting and in effect accepted by Gulf on November 6. On November 7, Burkhiser called Studley, described the situation to him, and asked Studley to "step out," promising that Gulf would show its gratitude for such an accommodation at some future time. Studley asked for time to think a bit, then called back to report his unwillingness simply to bow out empty-handed. Rather, Studley urged, Gulf should merely place the facts of plaintiff's role before the owner, in which event he (Studley) would be willing to abide the owner's decision. Burkhiser agreed to this, and reported the posture to Cadman on the following day. Cadman, in what could well have been found by the jury to be a falsehood, said he had already given the facts to Friedman and that Friedman did not wish to discuss the matter with Burkhiser. (Friedman, at the trial, denied this.) Burkhiser, in a November 8 letter to Cadman, expressed his personal displeasure over finding himself "in the middle"; mentioned his difficulty in understanding why Friedman should want to avoid hearing the facts fully; and announced his distress that for the first time in his career with Gulf, there should be an occasion for anyone to doubt his "personal integrity."
Subject to the indemnity arrangements mentioned above, Cushman & Wakefield was ultimately named as broker in Gulf's lease of three floors in the Sperry Rand Building. At the time of trial, the brokerage commissions from this arrangement amounted to just under $50,000.
As we have mentioned, the plaintiff in this second trial was permitted to go to the jury. The question we ultimately find decisive of the present appeal centers upon the interrogatories the jury was required to answer in addition to rendering a general verdict. Some aspects of the charge are also pertinent.
The jury was given six interrogatories — three to cover plaintiff's first count, the fourth covering Count II, the fifth covering Count III, and the final one to elicit the general verdict. The questions, together with the jury's answers were as follows:
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