Slotkin v. Willmering, 71-1505.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation464 F.2d 418
Docket NumberNo. 71-1505.,71-1505.
PartiesRay SLOTKIN, Appellee, v. Edward W. WILLMERING, Appellant.
Decision Date25 July 1972

464 F.2d 418 (1972)

Ray SLOTKIN, Appellee,
Edward W. WILLMERING, Appellant.

No. 71-1505.

United States Court of Appeals, Eighth Circuit.

Submitted May 19, 1972.

Decided July 25, 1972.

464 F.2d 419

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:

1"You have expressed interest in obtaining a buyer for certain assets of mine and this is to outline the terms acceptable to me for giving you a nonexclusive right to procure a buyer together
464 F.2d 420
with terms of compensation for you which are acceptable to me." (The property to be sold is described in detail.)
2 "The minimum acceptable deal to me is $4,500,000.00 from which I would expect to retire approximately $500,000.00 of corporate indebtedness (on equipment) or, in the alternative, a minimum net sale price (with no obligation on my part to retire corporate indebtedness) of $4,000,000.00.
3 a "on any such deal procured by you and accepted by me I would be willing to pay you a commission of two and one-half (21/2%) per cent on the gross sales price (that is, on, for example, the $4,500,000.00 price following which I would be expected to discharge the $500,000.00 of corporate indebtedness) or, b in the alternative, a commission of $150,000.00 on such $4,500,000.00 gross selling price if the net price to me is $4,000,000.00 with no obligation on my part to discharge the said corporate indebtedness. c Moreover if said gross selling price exceeds $4,500,000.00 I would agree to divide equally with you any excess of said gross selling price over $4,500,000.00.
4 "My obligation under this Agreement would expire if on or before December 31, 1967 you have not produced a buyer upon terms acceptable to me.
5 "It should be understood that, as above set out, this Agreement is nonexclusive. I may at anytime sell to a buyer procured by me or by anyone other than you and have no obligation to you for the payment of any commission on any such deal."

(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

464 F.2d 421
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...

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