Martin H. Bauman Associates, Inc. v. H & M Intern. Transport, Inc.

• Decision Date: 14 March 1991
• Parties: MARTIN H. BAUMAN ASSOCIATES, INC., Plaintiff-Appellant, v. H & M INTERNATIONAL TRANSPORT, INC., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 404

567 N.Y.S.2d 404

171 A.D.2d 479

MARTIN H. BAUMAN ASSOCIATES, INC., Plaintiff-Appellant, v. H & M INTERNATIONAL TRANSPORT, INC., Defendant-Respondent.

Supreme Court, Appellate Division First Department.

March 14, 1991.

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, ELLERIN and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about May 23, 1989, granting defendant's cross-motion for summary judgment dismissing the complaint, is unanimously modified on the law to the extent of denying the cross-motion to dismiss the first cause of action for breach of contract and otherwise affirmed, without costs or disbursements.

Plaintiff-appellant Martin H. Bauman Associates, Inc., an executive recruiter, commenced this action for breach of contract, quantum meruit and account stated. In that regard, it is alleged that in or about September of 1987, plaintiff and defendant H & M International Transport, Inc., which is in the trucking and freight business, entered into a contract whereby plaintiff undertook to perform a search for an executive for defendant corporation for the sum of $44,438.88, payable in three installments of $14,812.96 each, plus expenses. The first such payment was purportedly due immediately, the second in thirty days and the third after the services had been rendered. Defendant answered by asserting, in part, that it had rejected plaintiff's offer to engage in an executive search prior to any candidate being referred, that it had disclaimed plaintiff's proposed contract and that there was no agreement concerning the terms of payment in advance of defendant's hiring an individual sent by plaintiff.

In response to plaintiff's motion for a protective order against defendant's discovery demands, the latter cross-moved for, among other relief, to dismiss the complaint under CPLR 3211 and for summary judgment pursuant to CPLR 3212 on the ground of the absence of any contract between the parties. It is defendant's contention that plaintiff's retainer proposal was never accepted since an advance payment was requested, and any interest expressed by it in plaintiff's services was exhibited before it learned the precise terms for retaining plaintiff. Therefore defendant urges, no contract, particularly insofar as the requirement for advance payment was concerned, was ever consummated between the parties. There is no doubt that plaintiff never referred any potential employees to defendant, and defendant states that it refused to retain plaintiff and so informed it before any candidates could be sent for interviews. According to Patrick Heaney, defendant's Chairman of the Board, Martin Bauman contacted him at the company's office in Secaucus, New Jersey and represented that he was president of Martin H. Bauman Associates, Inc., an employment agency capable of assisting defendant in filling its personnel needs. Heaney informed Bauman that he might be interested in interviewing people for president of one of the New Jersey divisions. However, Heaney asserts, there was no mention of a fee, and he did not give Bauman definite instructions to proceed. A few days later, Bauman supposedly telephoned Heaney with the names of a few possibilities, but no terms for plaintiff's retention were discussed, and Heaney claims to have advised Bauman that he did not wish to pursue the matter at that time. Nonetheless, Bauman forwarded a proposed letter contract, dated September 11, 1987, which he asked Heaney to sign and indicate his agreement with the contents therein. Heaney insists that he not only refused to execute or return plaintiff's offer but instructed his assistant to contact Bauman and advise him that he was not interested. It is defendant's position that the only occasion on which Bauman set forth the cost of his services was in this letter, which provides, in pertinent part, that:

The following are our standard retainer arrangements and will, of course, be applicable to H & M International Transport, Inc. We will be recruiting for a President to oversee, strategize and help expand your three trucking companies located in JFK, Kearny, and Los Angeles. The position will report directly to you.

Our rates are 33 1/3% of the individual's first year's total cash compensation plus out-of-pocket expenses. For initial billing purposes, we have used a base salary of $100,000 plus a conservative bonus of 33 1/3% for a total package of $133,330.00. The first one-third payment is due immediately, the second one-third payment is due 30 days thereafter and the final one-third payment is due at the end of the recruit.

At the end of the letter, under Bauman's signature, was the following: "ACCEPTED BY: H & M INTERNATIONAL TRANSPORTATION, INC. BY ______________ PATRICK J. HEANEY, PRESIDENT, CHIEF EXECUTIVE OFFICER" and then "Please sign one copy and return."

While it is not contested that defendant neither approved the subject letter agreement nor ever interviewed any candidates referred by plaintiff, Bauman's version of his dealings with defendant is different. In his affidavit in opposition, he states that Heaney was originally scheduled to meet with him on July 29, 1987 at plaintiff's New York office but that the meeting did not take place. Instead, Bauman went to Heaney's office on September 9, 1987 at which time Heaney purportedly claimed that defendant was expanding and that he was seeking a president of defendant's trucking operations. Bauman thereupon gave Heaney some sheets entitled "Management Style and Personality Traits", requesting that he indicate the type of individual that he wanted; Heaney completed the sheets. Bauman further contends that at this meeting, he explained plaintiff's methods of operation and also described the fee arrangement, to which Heaney did not object. It is Bauman's position that he and Heaney agreed that they had a deal and that plaintiff would begin the executive search immediately. Bauman supposedly told Heaney that a letter confirming the foregoing would be forthcoming. Plaintiff promptly set about looking for appropriate candidates, and, on September 11, 1987, he sent Heaney the letter in question, which the latter retained without complaint. Further, neither he nor anyone else representing defendant ever expressed any disapproval.

Since Heaney had allegedly already agreed to terms, plaintiff perceived no significance in defendant's failure to execute and return the letter contract. Although Bauman never spoke to Heaney again, he did have some conversations with both his secretary and assistant. In early October of 1987, several weeks after defendant claims to have terminated any arrangement between the parties, Heaney's secretary, Ann Masiero, mailed Bauman a list of trucking companies which might have capable people who could be recruited for the vacancy at defendant corporation. This list, as well as a cover note from Masiero, is in the record. Bauman also claims that Heaney's assistant called him on October 9, 1987, declaring that defen...