
    Carl A. Schroeder et al., Individually and as Copartners Doing Business Under the Name of Carl A. Schroeder & Co., Respondents, v. Sitelines, Inc., Appellant.
    Argued September 22, 1971;
    decided October 21, 1971.
    
      
      Eugene A. Wotkoff for appellant.
    I. The agreement between the parties provided for commission payments based upon the quantum of services rendered. (Muzak Corp. v. Hotel Taft Corp., 1 N Y 2d 42; Newhall v. Appleton, 114 N. Y. 140; B. M. Heede, Inc. v. Roberts, 303 N. Y. 385; Atkinson v. Truesdell, 127 N. Y. 230; Kline v. Pane, 1 N Y 2d 15; Stein v. Palisi, 308 N. Y. 293; Amend v. Hurley, 293 N. Y. 587.) II. The Appellate Division may not modify a judgment of Trial Term on a theory not presented to Trial Term and not presented to the Appellate Division. (Farr v. Newman, 14 N Y 2d 183.) III. If the Appellate Division’s interpretation of the agreement is held to be erroneous, respondents’ cross appeal to the Appellate Division should be remitted to that court for determination.
    
      Hyman L. Rutman for respondents.
    I. The record fully supports the finding that plaintiffs are entitled to recover their full 10% commission. II. The parties by their express words have left no reasonable ground for doubt so that there is no excuse for construction. (Tuttle v. W. T. Grant Co., 5 A D 2d 370; Rosenthal v. American Bonding Co. of Baltimore, 207 N. Y. 162; Matter of Western Union Tel. Co. [Amer. Communications Assn., C. I. O.], 299 N. Y. 177.)
   Bergan, J.

On January 2, 1968 plaintiffs and defendant entered into a written contract pursuant to which plaintiffs became for defendant its exclusive manufacturer’s representative in the sale of Acousta/G-laze Window Products ” for a described territory.

The provision which is the subject of this action stated: Commissions will be paid on the basis of 10% base commission, distributed one-half for a specification and one-quarter each for the order and field service.”

Plaintiffs learned of the projected construction of the World Headquarters for Pepsico Inc. at Harrison. They initiated and took part in the presentation of defendant’s product for use in this building. There were protracted negotiations with the architect and others in which plaintiffs and representatives of the defendant participated and which resulted in acceptance of defendant’s bid for the acoustical glass in the project and the execution of a contract by defendant with the builder, Turner Construction Company, on June 28, 1968. This contract produced a total sale of $590,824.64 of defendant’s product.

It may be fairly said of the record that it shows a sufficient role played by plaintiffs in the finding of a purchaser for a very substantial quantity of defendant’s product and of the initiation and negotiation of conditions leading to the agreement of sale of June 28,1968 to meet any reasonable requirement as to earned commissions usual for a manufacturer’s representative.

Defendant’s proof shows that the term “ for a specification ” is usually understood in the business as persuading an architect to include the prpduct in his plans without necessity of modification of the product. But the term “ for a specification ” in this contract does not spell out the time when acceptance by the architect would be made and if the architect, the builder and the manufacturer are agreed on modification of the product and acceptance of it, it could well be found by the court to be a sufficient ‘ specification ’ ’ to meet a reasonable reading of the language where the manufacturer’s representative has initiated the arrangement and actively participated in the negotiations. This, too, as to “ field service ”.

Not only did defendant include plaintiffs’ 10% commission in its bid for the job but as to the avoidance of payment of the commission of 10%, the contemporaneous statements and actions of defendant make it clear that the absence of “ specifications” or of “ field service ” played no part whatever in the differences about commissions. The reason for nonpayment was, rather, that since defendant claimed it lost money on the job plaintiffs should share the loss.

In this connection the testimony of Bichard H. McCurdy, executive vice president of defendant, is significant. The bid was submitted April 16, 1968. Before it was submitted Mr. McCurdy had several conversations with Adams, one of the plaintiffs. He testified: “It was my point during this conversation to develop the strategy of approaching our bid on this job.”

His testimony continued: “ We discussed what our approach should be and I stated to Mr. Adams that I felt that our only chance of getting this job was to come in with the lowest possible figure * * *. I also related to Mr. Adams that we were very concerned in that we had not been involved in a job of this size as a material supplier and had never been involved as a subcontractor prior to that, that we both had to work together to get this job and that I would need his full cooperation and flexibility in relationship to his payment for commissions or compensation that we would pay him if we were successful in getting this job.”

There then follows a significant answer (still on direct examination) as to discussion of “ how much of a commission would be paid ’ ’. The answer was ‘ ‘ There was no comment to a specific amount. We discussed only that we would both be flexible and that he would trust us to be fair in deciding what the compensation would be ”. If the job was as profitable as defendant hoped, he added “naturally” we would hope to pay “a full 10 per cent of the total contract price ’ ’.

Quite consistent with this contemporaneous treatment of the specifications and field services provisions of the agreement as being quite irrelevant to the actual dealings of the parties in this large contract is a letter to plaintiffs from Lawrence W. Connelly, president of defendant, on November 22, 1968 answering plaintiffs’ request about “ commission payments ”. It opens: ‘ ‘ Lets establish the following policy, subject to your approval, so that we are all clear and able to plan cash flow in the future ’ ’, and concludes: “ As previously stated, it is our intention to pay the full commission due, with the proviso that we be given the opportunity to discuss this further in the event that the job does not go as we anticipate financially. This statement is intentionally vague so that you will realize that our intentions are surely not designed to reduce your well earned commission on this job.”

At the early stages of the negotiation Mr. Connelly testified that defendant’s strategy was to bid the job extremely low because the company “ had no recognition, we had never done a job like this, and the architect was Edward Durrell Stone, of considerable renown, the contractors, Turner, one of the largest in the country. It was unlikely that they would entertain Site-lines, who had never done a job of any magnitude like this, as a subcontractor for this job, unless there was enticement to do so.”

He continued: “ We indicated to Mr. Adams and Mr. Schroeder that if the job went successfully * * * that we would like to pay them 10 per cent of the price as their compensation for whatever they were going to do to help, and they were extremely cooperative, although they did not do anything specifically per the original agreement that we had.” It seems of significance that Connelly testified that ‘ essentially the reason ’ ’ defendant did not pay “ the full commission ” of 10% to plaintiffs was the ‘ financial inability ’ ’ of defendant to pay.

This contemporaneous basis of discussion about commissions must be seen in the light of the defense interposed by defendant in the action and urged in this court: that because plaintiffs did not literally induce the architect to insert defendant’s product without modification into “specifications” and plaintiffs did not render “ field service ”, their commission would be limited to a “ distribution ” of 2%% for getting “ the order ”. It is manifestly clear that this was not part of any of the contemporaneous discussions between plaintiffs and defendant, or their own interpretation as they acted on the contract itself.

Although none of these discussions or correspondence amounted to an unconditional acknowledgement by defendant of the obligation to pay “ a full 10% commission ”, the written agreement had already committed defendant to pay that amount if plaintiffs had performed their part as agents in producing the ultimate sale of the product.

Running through all the transactions, conversations and correspondence between the parties is the acceptance of plaintiffs’ work as a sufficient, and certainly highly productive, performance. Nowhere in the direct transactions between them is there suggestion by defendant that plaintiffs did not perform according to the terms of the contract until that defense was raised in this litigation.

The parties to a contract such as this one resulting in a manner of performance of large importance and potential advantage to the business of defendant could reasonably be deemed to treat as of no importance, and as not defeating plaintiffs’ commission, details such as architect’s specifications or field services. Indeed the architect did ultimately accept defendant’s product with changes and plaintiffs certainly did more in “field services ” than merely get the basic “ order ”.

There can be little doubt as a matter of essential fairness between the parties, plaintiffs should be treated as being entitled to the base commission ’ ’, e.g., “ our intentions are surely not designed to reduce your well earned commission on the job

It is possible other and more sophisticated procedural avenues might have been followed in this litigation. Plaintiffs could have alleged specifically practical construction of the contract by both parties to the contract on this particular job entitled them to 10% commission; or they might have disregarded the contract and sued on quantum meruit.

At the end of the trial and on the defendant’s motion to dismiss, its counsel, arguing that the contract was “not applicable ” to “ the Pepsico situation ”, conceded in answer to the question of the Judge that plaintiffs were “ entitled to get paid for their services ” but not on the basis of this contract. He agreed with the Judge’s posed alternative that recovery might be on quantum meruit. It could scarcely be doubted that on such a basis, in view of the size and importance of this sale, the commission would be found worth at least 10% of the sale.

If, however, it is possible to sustain the entirely just result reached at the Appellate Division without beginning all over again the protracted litigated process in which these parties have engaged, this should be done.

The Appellate Division decision may be read broadly to result in a finding that the parties themselves treated the specification and service clauses of the agreement as subordinate and without significance in the Pepsico job; and that there was a sufficient over-all performance by plaintiffs.

There was, the court held, “ on this project ” no requirement or need under the court’s “ interpretation of the contract ’ ’ for “ definitive services by plaintiffs ”. The record fully supports this conclusion. There is certainly no need to remit for further refinement or interpretation the superficially inconsistent statement of the court that ‘ ‘ the reference in the contract was merely to time of payment ”. The result reached is the right one.

The order of the Appellate Division should be affirmed, with costs.

Breitel, J. (dissenting).

This case involves a dispute over the amount of commissions earned by a local exclusive sales representative in the sale of acoustical building windows for a California manufacturer, Sitelines. A written agreement for commissions containing concededly an ambiguous term is involved. The issue is whether the commission rate allotted to ‘ ‘ a specification ’ ’ in the agreement required as a precondition that plaintiffs procure in building plans the specification of Site-lines ’ standard product. Defendant Sitelines argues yes, and plaintiffs have argued to the contrary. If Sitelines be correct, plaintiffs are entitled only to a 5% rather than a 10% commission, roughly a difference between $28,791 and $57,582. The 5% commission compensates plaintiffs for placing the order, and also for performing field services during installation on which there is no disagreement within this court.

A parallel question is whether during the negotiations for the contract on which the commissions are claimed the parties understood that the right to the additional rate of commissions remained disputed or instead reached some accommodation by words or conduct. On this question there is no dispute; the parties testified that at all times they were in contention as to the rate of commissions.

The extensive but unsuccessful efforts of plaintiffs to get Site-lines’ standard product specified, defendant’s proof, and the only expert testimony amply support the trial court’s finding that ‘ a specification ’ ’ referred to Sitelines ’ standard product. It is undisputed that plaintiffs never procured the specification of Sitelines’ standard product in the construction project in connection with which the commissions are claimed.

The written agreement between plaintiffs and Sitelines provided as follows with respect to commissions: ‘ ‘ Commissions will be paid on the basis of 10% base commission, distributed one-half for a specification and one-quarter each for the order and field service. In the event of a project involving more than one territory or representative, commissions will be split and Sitelines will be the sole arbiter as to the amount and distribution of split commissions.”

Prior to the sale which gave rise to the present dispute over commissions, plaintiffs had made on behalf of defendant sales of Sitelines’ windows totaling about $3,000. Pull commissions were paid because plaintiffs procured the order, the specification, and provided field service. The product was new and Site-lines was struggling to have it accepted in the market. Plaintiffs made contact with an architect who was designing the world headquarters of a major corporation, Pepsico. After extensive negotiations plaintiffs persuaded the architect to consider use of a Sitelines product. However, the architect did not accept the standard Sitelines window. Instead, he required changes in size and in the metal trim which made it impossible to use the standard tools and dies. But Sitelines was anxious to make the sale. It was willing to go to considerable expense to modify its design, even to take a loss if necessary, in order to obtain the bid. Sitelines was successful, ultimately deriving $590,824 in gross revenue from this project. Its net return was another matter.

The testimony is clear. Plaintiffs testified unequivocally that throughout the transaction they claimed a right to a full 10% commission. Defendant’s president testified with equal firmness that at all times he disputed this right because of the failure to obtain a specification of its standard product, but stated candidly that he nevertheless hoped to pay plaintiffs a full 10% commission if the project were profitable enough. In that vein, and this is not contradicted, he always insisted to plaintiffs that they were not entitled to that commission as of right because the standard Sitelines product had not been specified or used. Letters exchanged between the parties demonstrate conclusively that both parties told the truth about their own and the others’ respective positions. Defendant’s president also stated that it computed in its bid a full 10% commission because that is what it hoped to pay, and said it would pay, if all went well. Nevertheless, defendant would not be so bound until the financial impact was resolved and the parties reached agreement on what commissions should be paid on this project merely for placing the order.

On the trial defendant’s president and an industry expert testified that a full commission would not be earned or paid unless the salesman had procured specification in the plans for the construction project of the manufacturer’s product. This meant precise specification by brand name or equally identifying description. Field service in connection with installation was also a precondition.

The trial court, crediting the evidence as to the meaning of “specification” proffered by defendant, held that the additional 5% commission had not been earned. On the other hand, it found in favor of plaintiffs with respect to field service, holding that the additional 2%% commission had been earned, together with 2%% for the placing of the order. Plaintiffs, therefore, recovered a judgment of $28,791, the payment of which is no longer disputed, most of which has been paid, and the balance is more than covered by moneys now in escrow.

The Appellate Division modified, awarding an additional 5% commission on the theory that the reference to “ a specification ” only fixed the time payment was to be made. This theory is not supported by the record. Moreover, there is another provision in the agreement determining the time of payment which reads as follows: “ Commissions will be paid when payment on an order has been received by Sitelines. Commissions will be paid monthly.” Rules of construction of contracts require an interpretation which gives meaning to every provision of the agreement (Restatement, Contracts, § 235, subd. [c]; Restatement, 2d, Contracts [Tentative Draft No. 5, March 31, 1970], § 228, subd. [2], Comment d; Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N. Y. 342, 347). To find that reference to a specification fixes the time of payment creates an inconsistency as to when payment should be made. Moreover, it leaves the agreement without a provision specifying the categories of services the plaintiffs had to perform in order to earn their commission. The plain meaning of the language of the agreement, the testimony of the parties, and the testimony of an outside expert, all support the conclusion that the 5% commission was not earned unless the plaintiffs obtained “ a specification ”.

Thus far the result in the trial court and the unsupportable modification in the Appellate Division have been treated. Because of the modification in the Appellate Division, this court in review may choose either of the versions of fact thus far found, but no other. Thus the Appellate Division result may not be preserved by still another theory of law or fact unsupported by findings of fact in either court below (Cohen and Karger, Powers of the New York Court of Appeals, § 113, p. 488).

It has been suggested that whatever the contract meant in the case of ordinary sales, its meaning had been changed in the excitement of negotiating this particular highly-desirable, and for the parties, vast project. This theory involves new findings of fact not passed upon by any court below and not supported by the evidence. True, Sitelines’ president candidly admitted that Sitelines hoped to pay the full 10% commission if the project worked out successfully. However, he also expressed an intention that the parties remain bound by their agreement until they should agree upon an upward modification in the light of the financial impact of the large order even if for a nonstandard product.

Epitomizing the positions of the parties during the negotiations is the following paragraph from a letter memorandum sent by plaintiff Adams to defendant Sitelines: “As regards your last paragraph, I am like a peace talk negotiator, who has to go on record every time that you go on record and play the old refrain that ‘ We expect to be paid our full commission of 10%, and while we will discuss your financial problems with you, we must state that this discussion is without prejudice to our fixed position ’ or some such legal garbage. In any event, both Carl and I appreciate that you are leaning over backwards to help us, and we particularly appreciate the timing of your help. Thanks again to you and Dick from both of us.”

Thus, what remains is the problem with which the trial court began—the problem of determining whether the plaintiffs had obtained ‘ ‘ a specification ’ ’ within the meaning of the commission agreement. The Trial Judge’s determination that this provision referred to specifications of the manufacturer’s standard product is supported, if not indeed compelled, by the evidence. The plaintiffs concede that they tried in extensive negotiations to persuade the architect to use the manufacturer’s specification, but failed. As a result, the manufacturer incurred additional costs in excess of $50,000 to make its product conform to the architect’s requirement. An expert, qualified in the practice of the industry, testified, as noted earlier, for the defendant that under this contract a specification ’ ’ required conformity to the manufacturer’s standard product. There was no expert testimony on behalf of the plaintiffs. With the evidence showing that the plaintiffs understood that it was important to have the standard product specified, that the manufacturer had good reason to pay an additional fee for this specification, and the expert testimony, the Trial Judge’s factual determination that specification of the manufacturer’s standard product was required is supported by the weight of the evidence.

It should be obvious that this court is limited largely to a question of interpretation of the agreement. Whether plaintiffs performed “ a sufficient role ”, as the majority writes, “ to meet any reasonable requirement as to earned commissions usual for a manufacturer’s representative ”, is an inappropriate inquiry. Plaintiffs are limited to recovery on the contract and their theory of liability. They are not entitled to an arbitrated, and what some might regard as an equitable, settlement. Moreover, even assuming the appropriateness of such analysis, no evidence is present, if indeed it would have been admissible, to establish that 10% is a “ usual commission ”. Worse, to bypass the written agreement and treat the case as arising in quantum meruit is unfair to defendant who has had neither opportunity nor reason to offer proof on that issue.

And, of course, waiver or modification of the terms of the agreement by any practical construction or otherwise are precluded by the record. Least of all is it a court’s province to assess whether defendant, despite the terms of the commission agreement, should be especially grateful for obtaining this large order through plaintiffs’ efforts. That defendant should accept manfully the unprofitableness of the order is not relevant; it had feared and guarded against precisely such unprofitableness if the specification were not obtained. As it is, plaintiffs under the trial judgment would receive'$28,791 for what was less than a full contribution to the result.

Accordingly, I dissent and vote to reverse the order of the Appellate Division and reinstate the judgment of the trial court, on the ground that the factual determinations of the Trial Judge are supported by the evidence, and no acceptable alternative findings were made by the Appellate Division or are available to this court.

Chief Judge Full and Judges Burke, Scileppi and Gibson concur with Judge Bergan; Judge Breitel dissents and votes to reverse in a separate opinion in which Judge Jasen concurs.

Order affirmed.

(Appendix)

June 29, 1968

Carl A. Sehroeder & Co.

P.O. Box 12

Flushing, N. Y.

Attention : Carl & John

Subject: Pepsieo Commission

Dear Carl & John:

I can’t tell you how many times Dick and I have discussed your commission on this job so that we might determine an amount which you could look forward to. As you know only so well, there have been so many variables effecting our cost that we have been unable to accurately forecast our profit.

I don’t think it necessary to restate all the events which, over the course of bidding and getting this job, have increased our cost substantially. John, we discussed this problem briefly during my last trip to New York. The purpose of this letter is merely to let you know that we are not ignoring the issue. If you have no objections, we would prefer to delay a final decision on this matter until such time as we can all sit down and personally discuss it fully.

You know that we are very appreciative of your efforts in helping us with this job. Let me assure you that we will compensate you fully.

Sincerely yours,

SITELINES INC.

Larry

LWC:dam

August 31, 1968

Sitelines, Inc.

14705 Keswick Street

Van Nuys, California 91405

Attention Larry and Dick

Subject: Pepsieo Commissions

Dear Larry and Dick:

The fact that we haven’t answered your letter of June 29, 1968 on the subject of Pepsieo commissions doesn’t mean that we haven’t looked at this matter in every possible light.

I’m sure that you realize that we have been doing things for Sitelines and the Pepsico job (if they can possibly be separated) that no manufacturer’s rep would (or in many cases could) do for his principal. I’m of course referring to such things as bonding, legal conferences, sub-contracting, supply sourcing, etc., and since to a rep, time is money, we have and still are spending a lot of money on this phase of the job.

As you point out, it’s a difficult subject and one which can be argued convincingly on either side. Putting aside our rep’s agreement for a minute, we expect to be reimbursed for our achievement in opening the great big New York door, as well as for our special work which became essential under the conditions surrounding this job.

How it all adds up and how your extra costs may possibly subtract something is a tough problem. We, too, would like to see both sides agree so that we can plan ahead financially.

Very truly yours,

John P. Adams

ce Mr. Larry Connelly, Hotel Belmont Plaza, NYC 
      
      . Minor discrepancies in deriving the several percentages from the gross revenue are due to adjustments not material to the issue.
     
      
      . That the parties understood the situation equally well is demonstrated by an exchange of letters appended in full after this opinion.
     