Slotkin v. Willmering, 71-1505.
| Decision Date | 25 July 1972 |
| Docket Number | No. 71-1505.,71-1505. |
| Citation | 464 F.2d 418 |
| Parties | Ray SLOTKIN, Appellee, v. Edward W. WILLMERING, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John R. McFarland, Thomas L. Croft, Peter W. Herzog, Jr., St. Louis, Mo., for defendant-appellant; Coburn, Croft, Shepherd & Herzog, St. Louis, Mo., of counsel.
Mark R. Gale, Andrew F. Greensfelder, St. Louis, Mo., for plaintiff-appellee; Greensfelder, Hemker, Wiese, Gale & Chappelow, St. Louis, Mo., of counsel.
Before MATTHES, Chief Judge, VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY, Circuit Judge.
VAN OOSTERHOUT, Senior Circuit Judge.
This is an appeal by defendant Willmering from final judgment awarding plaintiff Slotkin a balance of $175,600 for finding a buyer for Willmering's business. Willmering was the owner of Comet Tool & Dye Company (Comet) and related subsidiaries located at St. Louis, Missouri. Slotkin had sold machinery to and purchased machinery from Willmering over a period of years and a personal friendship had developed between them.
Slotkin learned from a friend who had been President of Zarkin Machine Company, which made the same kind of parts for airplane manufacturers as Comet, that Curtiss-Wright, who had purchased Zarkin, might be interested in other similar acquisitions. In May or June, 1967, Slotkin encouraged Willmering to sell Comet. A prospective purchaser was not then named. Slotkin obtained from Willmering a detailed list of Comet's principal assets to be included in a sale. Slotkin on various occasions by telephone and letter requested a written contract setting out the commission to be paid for finding a buyer for Comet.
On September 29, 1967, Wilmering sent Slotkin a commission agreement signed by him which had been prepared by Willmering's attorney. The agreement to the extent material here provides:
(The numbers and letters are supplied by us for convenient reference.)
The letter contract was received by Slotkin and the terms thereof accepted. On October 9, 1967, Slotkin by letter wrote Willmering as follows: "The customer that I have for the sale of your plant as a complete deal as per discussion is the Curtiss-Wright Corporation." There is a dispute as to whether Slotkin advised Curtiss-Wright that he had Comet for sale. Slotkin claims that he did so by sending an inventory and appraisement of Comet's assets to Curtiss-Wright. An inventory and appraisal was found in the Curtiss-Wright file which Slotkin identified as the one he had sent.
Willmering received a letter from Curtiss-Wright in early November 1967 inquiring whether Comet was for sale. Willmering's attorney Barkin responded in the affirmative. Additional correspondence requesting and providing information followed.
Curtiss-Wright's senior officials inspected the Comet plant in December 1967. Willmering and Barkin, at Curtiss-Wright's invitation, went to New Jersey to negotiate a contract in February 1968. Slotkin met them at the airport. Slotkin testified that Willmering introduced him to Barkin as the man who made the marriage.
A shake-hands agreement was reached in March for the sale of Comet to Curtiss-Wright. The formal contract was signed and the deal closed in June of 1968.
The parties are in agreement that the purchase price was $4,300,000.00 with the purchaser agreeing to assume and pay debts of the seller in the approximate amount of $500,000.00 referred to in the letter commission contract. The amount received apart from the debt assumption was reduced to $4,226,321.00 by reason of some offsets not disputed by anyone.
The case was tried to a jury. The trial court submitted to the jury the issue of the interpretation of the duration and quantity of performance provisions of the contract and the issue of whether plaintiff's performance met such provisions. The court, upon the basis of its prior determination that the contract was not ambiguous with respect to the compensation features of the contract, advised the jury that if the plaintiff prevailed he was entitled to a verdict for $175,660.00. The verdict was for the plaintiff in such amount and judgment was entered thereon.
Defendant urges he is entitled to a reversal by reason of errors committed by the trial court as follows:
I. In instructing the jury that the plaintiff if found entitled to judgment was entitled to $175,660.00.
II. In failing to dismiss the complaint upon the ground the action is barred by the New York Statute of Frauds.
III. In excluding parol evidence of the negotiations preceding the execution of the contract.
IV. In holding plaintiff made a submissible case on the issue of performance.
We hold that the trial court committed no prejudicial error and affirm for the reasons hereinafter set forth.
We agree with the trial court's conclusion that the compensation terms of the contract are not ambiguous and that under the terms of the contract plaintiff, if entitled to recover, should be given a verdict for $175,660.00 as the balance due for commission.
It is agreed that Willmering received as proceeds of the sale a net amount of $4,226,320.00 and in addition the buyer assumed the seller's obligations on equipment estimated at $500,000.00. The trial court computed the commission due on the contract as follows:
$4,000,000.00 of net sale
price under paragraph
3 b— $150,000.00
One-half of net sale price
above $4,000,000.00
($226,321.00) under
paragraph 3 c— $113,160.00
-----------
Total commission— $263,160.00
Less agreed credits by
payments on commission— 87,500.00
-----------
Balance commission— $175,660.00
The commission under paragraph 3 a on a gross sale of $4,500,000.00 out of which Willmering would have to pay $500,000.00 in machinery indebtedness would be 21/2% or $112,500.00.
Defendant argues that under paragraph 3 a the commission on the net of $4,226,371.00 received should be computed at the 21/2% rate provided in 3 a which would amount to $105,658.00, and that commissions on transactions which yield the seller the same net amount of money should be the same, and that 3 a and 3 b are inconsistent with each other and hence ambiguous. The trial court rejected such contention, holding that the 21/2% rate of 3 a applies to a gross minimum deal and the $150,000.00 commission in 3 b applies to a net minimum deal. The parties in paragraphs 2 and 3 clearly draw a distinction between a sale with a gross selling price and one with a net selling price, and incorporate in the agreement a definition of a gross sale and a net sale and support the definition by example.
The agreement reflects that the defendant approximated the debts to be assumed by the purchaser on a net sale to be $500,000.00 and thus set the minimum gross sale price at $500,000.00 above the minimum net sale price. No claim is made that the debt approximation is not substantially correct.
The trial court holds that the parties by the express provisions of their contract provide for a different commission on a net sale and a gross sale and that the fact that a net sale and a gross sale would allow substantially the same net amount is not persuasive on the ambiguity issue. The court states:
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