Morris v. Aerojet-General Corp.

• Decision Date: 08 August 1960
• Docket Number: AEROJET-GENERAL
• Citation: 183 Cal.App.2d 609,6 Cal.Rptr. 906
• Court: California Court of Appeals Court of Appeals
• Parties: , Blue Sky L. Rep. P 70,490 W. A. MORRIS, Plaintiff and Appellant, v.CORPORATION, a corporation, et al., Defendants and Respondents. Civ. 24520.

Page 906

6 Cal.Rptr. 906

183 Cal.App.2d 609, Blue Sky L. Rep. P 70,490

W. A. MORRIS, Plaintiff and Appellant, v. AEROJET-GENERAL CORPORATION, a corporation, et al., Defendants and Respondents.

Civ. 24520.

District Court of Appeal, Second District, Division 1, California.

Aug. 8, 1960.

Rehearing Denied Aug. 25, 1960.

Hearing Denied Oct. 5, 1960.

Milo V. Olson, Los Angeles, and Henry K. Kirkpatrick, Hollywood, for appellant.

Hill, Farrer & Burrill, John J. Wilson, and William S. Scully, Los Angeles, for respondent.

ROBERT H. SCOTT, Justice pro tem.

Plaintiff sued defendant, an Ohio corporation, for alleged breach of contract, asserting that the defendant had employed him to sell certain of its stock and had agreed to pay him for doing so; that he had made the sale but the corporation refused to deliver the stock to the purchaser or to pay him his commission.

At the close of plaintiff's case (which was being tried with a jury) defendant moved for a nonsuit. The court made an order dismissing the jury and dismissing the case. From this order plaintiff appeals.

It was the duty of the trial court in passing upon the motion for nonsuit to give plaintiff's evidence all the value to which it was entitled, indulging every legitimate inference reasonably deducible from the proof in favor of plaintiff, ignoring conflicts in the testimony and disregarding evidence for the defense. Nash v. Wright, 82 Cal.App.2d 467, 470, 186 P.2d 686.

Summarizing evidence presented by plaintiff we find that, when plaintiff called the corporation, its president, Kimball, told plaintiff that it was true that the corporation was contemplating an issue of stock of a total value of five million dollars, being 25,000 shares at $200 a share. Plaintiff told him be would like to handle the placement of it with eastern buyers at a cost not to exceed five per cent but would need defendant's literature. Kimball stated to plaintiff, 'Line up your buyers, I'll send the material.' Defendant sent the printed catalogs or brochures and documents to plaintiff. The latter told Kimball he was going to New York and would attempt to close some sales. Kimball said: 'Well, Roger Cortezzi of Auchincloss, Parker and Redpath are doing the same thing. Correlate your efforts with him.'

Plaintiff sent the printed material to prospective purchasers in New York and when he arrived there he discussed with them the matter of their purchasing defendant's stock. He was asked for additional printed material which was sent by defendant to plaintiff and forwarded by him to the prospective purchasers.

Plaintiff had telephoned Cortezzi and was told to call him when plaintiff arrived in New York. This conversation was reported to Kimball by plaintiff who also told Kimball that plaintiff had learned that Cortezzi's firm was apparently in the deal and asked Kimball what he should do. Kimball responded: 'Keep the pipelines open,' which plaintiff understood to mean that he was to keep going.

When plaintiff arrived in New York he called Cortezzi but the latter was leaving town and plaintiff was unable to see him. While there plaintiff interviewed various representatives of prospective purchasers.

Upon his return to Los Angeles he telephoned Kimball and at the latter's request went to see him at his office. Kimball told him he had decided to give the deal to the brokerage firms of Auchincloss, Parker and Redpath and to Kidder, Peabody and Company in New York.

Plaintiff testified that he told Kimball: 'That it was a disappointment, and that I could see that $5,000,000 wasn't going to be enough finance for a company that is growing that fast. I said I wouldn't make any trouble over that five that they proposed at that time, but I could see that they were going to need more, and could I have whatever excess over if they went that high.' When asked, 'What did Mr. Kimball say to that?', plaintiff testified: "O.K.' We shook hands and Mr. Beehan took me on a tour of the plant and facility.' This conversation was about the 12th to 14th, or perhaps as late as the 19th of April, 1957.

A total of 33,500 shares was issued at $225 a share. The resolution of the board of directors of the corporation relating to it was passed June 4, 1957. There is no evidence that after that date plaintiff had any conversation with defendant's officers or there was any writing emloying plaintiff to do anything or promising to compensate him in any way for work done prior thereto or thereafter.

In May plaintiff received an order from one of his purchasers for 5,000 shares at the offering price of $225, but a few days later in the same month the order was cancelled. no other offer was received by or through plaintiff.

From plaintiff's testimony it therefore appears that he claimed a contract to act as broker for sale of stock for $5,000,000 at a commission of not over $250,000 and when told that defendant did not intend to let him proceed under that contract plaintiff merely said it was a major disappointment. That seems to have cancelled whatever right, if there was any, that plaintiff might have had up to that time. Plaintiff testified that after that experience he asked: 'Could I have whatever excess over [the $5,000,000] if they went that high' and based his final claim of a contract on the alleged response of defendant's president: 'O.K.'

If the evidence is legally insufficient to support a recovery the trial court should order a nonsuit. The court may grant the motion when, upon a consideration of the evidence in its most favorable aspect, it does not establish a prima facie case. The proof must be of a substantial character. It must be such that a reasonably intelligent person can fairly deduce from it that the fact alleged really does exist. Meadows v. Emett and Chandler, 86 Cal.App.2d 1, 10, 193 P.2d 785....