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INTERCONTINENTAL PLANNING v. DAYSTROM (04/10/69)

COURT OF APPEALS OF NEW YORK 1969.NY.41092 <http://www.versuslaw.com>; 248 N.E.2d 576; 24 N.Y.2d 372 decided: April 10, 1969. INTERCONTINENTAL PLANNING, LIMITED, APPELLANT,v.DAYSTROM, INCORPORATED ET AL., RESPONDENTS Intercontinental Planning v. Daystrom, Inc., 30 A.D.2d 519, affirmed. Counsel Charles S. Desmond, Stuart A. Jackson and John M. Cochran, III, for appellant. Charles C. Parlin, Jr. and James A. Quaremba for respondent. Judges Scileppi, Bergan and Breitel concur with Judge Jasen; Chief Judge Fuld concurs in a separate opinion in which Judge Burke concurs; Judge Keating taking no part. Author: Jasen


Intercontinental Planning v. Daystrom, Inc., Judges Scileppi, Bergan and Breitel concur with Judge Jasen; Chief Judge Fuld concurs in a separate opinion in which Judge Burke concurs; Judge Keating taking no part.

Author: Jasen

 The plaintiff, Intercontinental Planning, Limited is a New York corporation engaged in the business of bringing together European and American firms desiring to enter into business relationships. By this action plaintiff seeks to recover a finder's fee of $2,781,848 for its alleged services with respect to the acquisition in 1962 of a New Jersey electronics corporation, Daystrom, Incorporated, by defendant Schlumberger, Limited.*fn1 Defendants deny that plaintiff played any role with respect to this acquisition, and assert that neither they nor Daystrom ever requested or agreed to pay compensation for any services plaintiff may have rendered concerning this particular acquisition. This appeal is limited solely to plaintiff's cause of action in contract for recovery as a finder. Special Term granted defendants' motion for summary judgment upon the ground that plaintiff's action was barred by the New York Statute of Frauds. The Appellate Division unanimously affirmed the dismissal of plaintiff's cause of action in contract.*fn2

It is firmly established, of course, that summary judgment may not be granted whenever the pleadings raise material and triable issues of fact. (Sillman v. Twentieth Century-Fox, 3 N.Y.2d 395, 404.) We consider the evidentiary facts alleged in the light most favorable to plaintiff on this appeal from the grant of summary judgment to defendants. We conclude, however, that no triable issue of fact is raised when the evidentiary facts are so weighed.

The affidavits submitted upon the motion for summary judgment show that plaintiff's president, Salomon Jakob*fn3, met Jean Royer, the president of a small French electronics firm, Rochar Electronique, at a trade fair in New York City in May, 1960. Mr. Royer requested Mr. Jakob to introduce him to "American companies which had similar manufacturing capabilities and desired a foreign affiliation." Mr. Jakob undertook to locate interested American firms by placing an advertisement in the May 9, 1960 issue of the Wall Street Journal. Daystrom responded to this advertisement.

On May 20, 1960, Mr. Jakob introduced the presidents of Daystrom and Rochar at a luncheon meeting at the Pinnacle Club in New York City. Prior to this meeting, Daystrom agreed in principle to pay plaintiff a finder's fee should a suitable business relationship be established with Rochar. Negotiations were held at this meeting concerning the establishment of a business relationship between Daystrom and Rochar. Both principals indicated their readiness to pay plaintiff a finder's fee should an "active business relationship" be concluded between the two firms.*fn4 Between May 20, 1960 and June 20, 1960, several letters and telephone calls passed between Mr. Jakob in his New York office and Daystrom's president in his New Jersey office concerning the amount of the finder's fee to which plaintiff would be entitled should the business relationship be concluded. Daystrom's attorney drafted a proposed agreement, dated June 20, 1960, establishing the terms and amount of the finder's fee. This draft agreement was mailed to plaintiff's New York office. Mr. Jakob then traveled to New Jersey on June 27, 1960, and signed the agreement in Daystrom's New Jersey office. In pertinent part, this agreement states:

"As you requested, I am writing to confirm my understanding of the terms of our agreement reached through our discussions and telephone conversations by reason of which you have been acting in behalf of Daystrom, Incorporated with a view toward the acquisition of Rochar Electronique.

"Should we acquire the company in question by purchase of its stock or assets, we shall pay you a commission equal to * * *

"This shall be the entire agreement between us and if the foregoing is acceptable to you, please execute the acceptance noted below on one copy of this letter and return the same to us, whereupon it shall constitute an agreement on the terms stated herein.

Very truly yours,

/s/ Thomas Roy Jones

Thomas Roy Jones

President

Accepted:

By S. Jakob June ...


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