W. Ross Campbell Co. v. Peskin

SHINN, P. J.

This is an appeal by defendant Peskin, owner of a commercial type building, from a judgment of $16,605 awarded plaintiff as a commission for providing a corporate client which was ready, able and willing to lease the building for 10 years at a rental of $4,585 per month. It is not questioned that plaintiff was employed by defendant as broker under an oral agreement or that if a commission was earned it would have amounted to the sum that was awarded.

The findings established all the facts necessary to a recovery by plaintiff. Most of them were contained in a written stipulation. The sole question is whether the evidence was insufficient to support one or more of the findings of the controlling facts. This, as we shall see, narrows down to the simple question whether plaintiff’s client was willing to' lease on defendant’s terms. We may as well say here that the essential findings had ample support in the evidence.

Defendant’s building was occupied by North American Aviation Company under a lease which ran to September 1, 1956. On October 5, 1955, American wrote a letter to defendant’s authorized agent stating it did not desire to renew its lease and was willing to surrender possession at any time after January 1, 1956. Plaintiff’s salesmen, Dickson and Harrison, aware of American’s intention, offered their services to Peskin in finding a new tenant. Harrison procured a written offer of Monadnoek.Mills, to lease the building and submitted it to Peskin. The stated term was 10 years from January 1, 1956, and the base rental $4,585 per month. On November 2, American wrote Peskin withdrawing its offer to vacate by January

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1st, but stating that it would be willing to vacate by May 15th, or possibly sooner. November 7, Peskin in writing stated to plaintiff the terms upon which he would lease to Mills for a term commencing May 15th. In general, they were identical with the terms of Mills’ offer. Both proposals stated as a necessary condition that North American would have to execute a firm agreement to surrender its lease and the premises by the date of the commencement of Mills’ lease.

There were some differences in the two proposals, principally a change of the date of commencement of the term from January 1st to May 15th, to which Mills assented. The findings,, express and implied, established that in all important respects in which the proposals differed there was later reconciliation and agreement. The terms of the two proposals were numerous and comprehensive. They were the subject of extensive negotiation between the attorneys for Mills and the attorney for Peskin. Mr. Shea and Mr. Doty represented Mills and Mr. Schwab represented Peskin in drafting a lease that would be satisfactory to their respective clients. Throughout the interval between November 22nd and December 27th, 1955, letters were exchanged between counsel, drafts of a lease were prepared and submitted, many changes were agreed upon, and on December 27th, the final draft executed by Mills in triplicate was submitted to Peskin through Mr. Schwab. Without objection to any of the terms of the lease, Mr. Schwab delivered them to Peskin who signed three duplicate originals. These were retained by Peskin and were never delivered to Mills.