The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW
The above-entitled action by George A. Koteen Associates, Inc. ("Koteen") against Fulton Industries Inc., sued herein as Fulton Cotton Mills, Inc. ("Fulton"), for alleged breach of a utility consultant contract was tried before me without a jury on October 16, 1969.
The action was instituted in the Supreme Court of the State of New York, County of New York, and removed to this court upon petition of the defendant.
The parties have stipulated that, if liability is determined to exist, the amount of damages would be $13,497.43.
Plaintiff, Koteen, is a New Jersey corporation. Defendant, Fulton, is a Georgia corporation. Judge Bryan of this court, in an opinion and order dated June 28, 1967, sustained venue in the Southern District of New York.
After hearing the testimony of the parties, and examining the pleadings, the exhibits and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, I make the following Findings of Fact and Conclusions of Law:
1. At all times hereinafter mentioned, Koteen was engaged in utility rate consultation; and Fulton was engaged in textile manufacturing in Atlanta, Georgia.
2. On October 25, 1960, the defendant signed plaintiff's standard form of agreement in Georgia, which form was subsequently accepted by plaintiff in New Jersey (see Ex. 1). The contract was prepared by Koteen (SM 117-118). Under the agreement plaintiff was employed as defendant's "utility rate consultant" for a three-year period.
The service rendered by plaintiff to defendant was to include, among other things, the following:
"RATES AND CONTRACTS: Make a thorough analysis of our rates and contracts under which our electric, gas, water, and steam services are being purchased to determine if we are receiving the most favorable rate schedules available. Also advise how we may take full advantage of all provisions, clauses, and special riders in force.
"AUDIT: Audit our past utility bills which have been paid by us, for a period not to exceed one year. When an audit of prior bills in any specific case is warranted, you will audit those prior bills, going as far back as may be necessary. You will also audit our future bills during the life of this agreement.
"APPROVAL AND REPRESENTATION: It is understood that we have the right to approve any recommendations, and that all negotiations are to be handled through us unless we instruct you otherwise." (Ex. 1)
The provision for payment to plaintiff was as follows:
"WE PAY YOU NO RETAINER OR ADVANCE FEES OF ANY KIND. We do agree to pay you 50% of all rate reductions which are secured through your efforts, for a period of forty-eight (48) months from the date each reduction actually appears on our bills. We also agree to ...