Hastings, Chief Judge, Fairchild and Cummings, Circuit Judges.
FAIRCHILD, Circuit Judge.
Action*fn1 to recover a broker's commission for procuring a buyer for a very valuable collection of rare books.
John F. Fleming is a widely known expert and dealer in rare books. His corporation is plaintiff. Louis Silver was owner of the books in question, often referred to as the Silver library. Mr. Silver died October 27, 1963. Defendants Beutel and American National Bank and Trust Company of Chicago are his executors. Interested beneficiaries of his estate were his widow and daughters.
Plaintiff's complaint alleged, in essence, that before Mr. Silver's death he employed plaintiff to sell the library; that after his death plaintiff's employment was continued by defendants; that prior to May 13, 1964, plaintiff's efforts produced the University of Texas as a ready, willing, and able buyer at a price ($2,750,000) and upon terms agreeable to defendants, but that defendants on that date sold the library to the Newberry Library of Chicago (not procured by plaintiff); that the reasonable, usual, and customary rate of commission for services of the type rendered by plaintiff ranges between 15% and 20%.
Defendants filed no answer, but moved for summary judgment. The material in support of and in opposition to the motion was voluminous, consisting of affidavits, depositions, and correspondence, memoranda and other documents appended as exhibits.
The district judge filed a memorandum, analyzing the material on file and determining (1) that no agency or brokerage agreement was ever consummated between the parties and (2) that, in any event, the University of Texas was not, prior to the sale to Newberry Library, a ready, willing, and able buyer.
Judgment was entered for defendants and plaintiff appealed.
Fleming and Silver were friends and often dealt with each other. On June 25, 1963, Mr. Silver authorized Fleming and his corporation to offer the Silver library for sale at a price established by an appraisal made by Fleming. (It is unnecessary under the circumstances to distinguish between Fleming individually and his corporation, and we shall refer to "Fleming" as if they were identical.)
After Mr. Silver's death in October, Fleming continued to seek a buyer. He did so with the consent of the executors and Mrs. Silver. There was no express contract for his services or commission as broker.
Fleming introduced the University of Texas as a prospective buyer in November, 1963. In December the Board of Regents authorized Dr. Ransom, the Chancellor, to buy the library at a price of $2,750,000, and this price was acceptable to the estate. The Texas Board of Control approved. Fleming had aided Dr. Ransom in preparing his presentation to these boards. In March, April, and early May, 1964, attorneys for the estate and the university worked on successive drafts of a purchase contract.
After Mr. Silver's death, the books had been moved to the vaults of defendant American National Bank. No representatives of the university had inspected the books, although they had examined a detailed inventory of them. In early May the parties contemplated that an inspection by representatives of the university would precede the signing of the purchase contract. The contract would be performed on the date it was signed. There is evidence that the university representatives would have come to inspect on May 11, 12, or 13, but were told by defendants not to come.
Starting in December, 1963, Fleming and the defendants had negotiated and argued about the amount of Fleming's commission in the event of sale to the university. No agreement was reached, Fleming's minimum, except for one conversation, being $200,000, and defendants' maximum being 5%, or $137,500, plus certain books not included in the sale.
Newberry Library approached defendants as a possible buyer April 21, and the contract of sale to Newberry was signed May 13, 1964. Newberry paid $2,687,500. No commission was paid. Defendants assert that the sale price was computed by subtracting from $2,750,000 the amount of a 5% commission and adding $75,000 in contemplation of litigation by Fleming, with an informal understanding that ...