why I (plaintiff] was there, to protect their interests and to assist in the negotiations” (62, 115-116).

The three of them went into Singer's room (63). Plaintiff thought it best to state clearly his position. Singer said that plaintiff had brought the deal to Universal through Alton Blauner (115), and although plaintiff was employed by the Eby people through Blauner, nevertheless Universal, the prospective buyer, would pay plaintiff's commissions (64, 115, 479480; cf. 486-487). Singer wanted that fact "disclosed so that there could never be at any time any question of that, although I was being paid by them, I had in any way created a problem because of my employment by the Eby people, and he disclosed that they knew me for a long period of time and that my participation in the thing had been helpful” (64-65, 480). Nothing was said as to when commissions were to be paid (480-481),

A summary of the earlier Stamford meeting was presented as well as Eby balance sheets, previously supplied to Levien and Singer, and an Eby catalogue (66-67, 68-70, 75, 77-78, 88, Ex. 2). An item of $87,000 on the Eby balance sheet, representing a claim for accrued salaries, was questioned, plaintiff stating that Alton Blauner had told him this item could be disregarded as a liability and considered instead as a capital investment (82-84).

Levien and Singer asked for further financial data concerning Eby. Defendants referred them to their accountants, Paige and Schwartz, at the same time authorizing plaintiff to get such material, which he later did (72-73, 110-112). Offer

was

man said that Alton Blauner, “their financial agent with authority to negotiate the deal”, the person through whom plaintiff would continue the negotiations (152-153, 179-180).

At this meeting, which lasted several hours (108), Singer stated that apart from the question of price, Universal was interested in the type of persons with whom they would be associated after Universal took over; therefore, investigation of defendants' background was essential (89-91). Offerman said that the Eby stock was worth the 112 million dollars they were asking; that he was acting for Sussman and also for Hauley, an elderly inactive gentleman, and that there would be no great need to deal with three people, but he would act for all of them” (91-93, 116). Levien thought $750,000 a fair price (93). Offerman said that Eby had made a great deal of money in the previous year, most of which would be taken up by excess. profits taxes (94-95); that Eby had unsuccessfully sought public underwriting and also was seeking to merge with a company having a favorable tax base (96).

Levien and Singer described Universal's status (“a publicly held company'') and presented some of the financial statements and proxy statements” thereof (97-107, Exs. 7-9). They told defendants that they had sold a company known as Ohio River Steel to Universal for 272 million dollars, taking Universal's preferred stock in exchange; that Universal then had one operating company, owned an ink company, had $2,000,000 in available cash but desired to buy additional companies through the issuance of stock (97-99, 108); and that “the form that this

66

deal should take would be a tax free exchange of stock, all of the stock of Eby Corporation for stock in Universal and that seemed to be quite acceptable” (108).

Some time after this mid-August meeting, plaintiff communicated with Levien and Singer who said their interest was only “lukewarm” and if any pressure were put on them, the deal would not proceed (112-113, 117). He had numerous conversations with Levien and Singer and the Blauners (118-120).

On October 22, 1952, a meeting was held attended by defendants, Levien and Singer, Alton Blauner and one Gould. Plaintiff was not present (121). Several weeks after this meeting Offerman told him that the parties at this meeting had agreed on a price of $1,000,000 in Universal preferred stock for all the Eby stock and “on everything that was involved, that there was no item left over". The parties had likewise shaken “hands on the deal” (125-127).

He again met Offerman with Levien and Singer around November 17th, after Sussman had allegedly repudiated the deal (125-126). Offerman, advised by plaintiff to tell of Sussman's activities, purportedly told plaintiff and Levien and Singer that he was embarrassed to face Levien and Singer, for after the October 22nd meeting, Sussman had brought in his attorney and his accountant and one Mullaney (Hauley's attorney from Philadelphia) to see him and he had arranged a meeting for them with Levien and Singer. At such later meeting, according to what Offerman allegedly told plaintiff, everyone seemed satisfied with the information given by Levien and Singer. But after leaving the meeting, defendants repaired to a restaurant where Sussman's attorney or accountant on behalf of Sussman told Offerman he did not like the deal. Offerman purportedly asked Sussman why objections had not been raised before and said he was through with Eby (126-131).

Offerman further said, according to plaintiff, that he thought that Sussman, being 60 years old as compared to Offerman's 35 years, had been advised by his attorney or accountant that the deal was not too good from Sussman's standpoint and Sussman should not gamble with it. Offerman further mentioned that he and Sussman had each bought 3712% of Eby stock through Mr. Mullaney for $5,000 and had each loaned Eby $50,000 which had been repaid; that Hauley held a small minority interest but was inactive; that each was drawing $40,000 annually from Eby, and in addition Sussman was the New York sales representative of Eby making another $60,000 annually therefrom. Offerman said he liked the deal and wanted to know if Levien and Singer would buy out his shares. Levien and Singer said that perhaps Sussman could be paid all cash or cash plus stock. This November meeting ended on a note that Offerman would find out what Sussman wanted to do (126-141). Offerman for some time afterwards said he wanted the deal (140, 457-458), and at no time did Levien and Singer say they wanted to call it off (458).

In January or February, 1953, plaintiff again conferred with Offerman. He told Offerman he thought Offerman and the Eby stockholders should pay him his commission on the deal (147148). Offerman allegedly replied that while the deal had been repudiated, his lawyer told him there was no legal obligation to pay (148-149). Plaintiff suggested that he would write Offerman a letter showing liability to pay commissions; but instead plaintiff decided to commence legal proceedings (149-150)—a suit characterized as one for damages, not for commissions (482-485).

As to the quantum meruit count, plaintiff testified that he had conferred several times with the Blauners, especially Alton, and Levien and Singer (179-180); had arranged the Stamford meeting at which Offerman (but neither plaintiff nor Sussman) was present (167-170, 177-179), and arranged the mid-August meeting, supra. (The services as set forth at folios 445-457 show a number of telephone calls in November, 1952 and afterwards, subsequent to the collapse of negotiations [451-457]. These services were reasonably worth 5% of the selling price or $50,000, but at Levien and Singer's request, he was seeking only one-half thereof or $25,000[461-463].)

On cross-examination, plaintiff admitted he never met, conferred with or wrote the unserved defendant Hauley who owned between 20-22% of Eby stock and whose stock was to be included in the alleged deal (463-465, 472-473). He met and spoke with Sussman on only one occasion, at the mid-August meeting. He never after communicated with Sussman in any way (465-467). He met and conferred with Offerman on only two occasions, the same August meeting and after the deal fell through (466-470). Although an experienced lawyer, he had received no written statement concerning his employment or commissions from any one, including Levien and Singer whom he trusted and who had agreed to pay his commissions (470-477). He had attended only one meeting at which defendants were present before negotiations were broken off (474).