Zell v. American Seating Co.

138 F.2d 641 (2nd Cir. 1943)

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Nature of the Case

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Facts

Zell (P) offered to procure contracts for American (D) for manufacturing products for national defense in consideration of $1,000 per month for a three-month period. If he was successful in his efforts, P was to pay him a further sum of not less than 3 percent and no more than 8 percent of the purchase price of the contracts. A written instrument was executed, but it omitted the provision that if P was successful, he was to receive a bonus varying from 3-8% and instead stated that the $1,000 per month would be the full compensation but the company may if it desires pay you something in the nature of a bonus. At the time of signing, the parties agreed that the written agreement was erroneous and that the misstatement in writing was made solely to avoid any possible stigma, which might result from putting the provision in writing. P procured $5,950,000 million in business for D, but D refused to pay commissions and offered a settlement of the $8,950 he was paid from the monthly stipends and an additional sum of $9,000. P refused and sued. The trial court granted D a summary judgment. P appealed.