Wachs v. Wachs

THE COURT.

A hearing of the instant appeal by this court after decision thereon by the District Court of Appeal has resulted in the conclusion that the decision that was rendered by the latter court is correct. The opinion therein, which was prepared by Mr. Justice Spence, is therefore adopted as the opinion of this court. It is as follows:

“Plaintiff brought this action upon a contract seeking to recover a share of certain commissions claimed to be due him under the terms of said contract: From a judgment in favor of defendant, plaintiff appeals.

“For approximately ten years prior to October 1, 1931, plaintiff and defendant had engaged in the real estate business as copartners under the name of ‘Wachs Bros.’. A dissolution agreement was entered into as of that date. There was a paragraph in said agreement entitled ‘Good Will’ which read in part as follows:

“ ‘It is contended by Harold Wachs that there is a good will which appertains to the partnership and that upon the dissolution thereof compensation should be made to Harold Wachs by Lionel Wachs. Attached hereto is a list called schedule 10 of the persons Avith whom Wachs Bros, have been in contact during the life of the partnership and to whom maps, letters and other literature have been sent. . . . Lionel Wachs hereby agrees to pay to Harold Wachs out of the commissions earned from any transactions consummated on or before October 1, 1934, a sum not to exceed $2,500, which sum shall be payable.as follows: When any transaction leading to a commission is closed as to any persons on said Schedule 10 . . . Lionel Wachs agrees to pay 25% thereof to Harold Wachs, within thirty days after the receipt thereof, until the sum of $2,500 has been paid. ’

“In his complaint, plaintiff alleged among other things ‘That the persons listed on said Schedule 10, by reason of

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their ownership of property, or interests in property, or their contacts with owners of property, or owner of interest in property, were persons with or through whom future patronage was-anticipated by said partnership ’. These allegations of the complaint were stricken out upon motion of defendant.

“On the trial plaintiff made an offer of proof to which an objection was sustained by the trial court. It appeared that approximately 200 persons were named on said schedule 10. It was stated in the contract that said schedule contained a list of