Friendly, Smith and Feinberg, Circuit Judges.
Appellant Meyers, a citizen of New York, brought this action in the District Court for the Southern District of New York against The Selznick Company, Inc., a California corporation, to recover on express contract or in quantum meruit a finder's fee on transactions by the defendant with one Sig Shore or his interests respecting two of defendant's motion pictures, Duel in the Sun and Ruby Gentry, for television broadcasting. The action was tried to a jury but the judge granted a motion by the defendant for a directed verdict and dismissed the complaint.
Early in 1962 Meyers ascertained from the late David O. Selznick, president of the defendant, that it had available for distribution to television stations a library of 19 motion pictures, all but two of which, Duel in the Sun and Ruby Gentry, had been previously shown. According to Meyers, Selznick fixed prices of $20,000 for a three-year and $25,000 for a five-year license on the reissued films and a total of $500,000 for the initial presentations of Duel in the Sun and Ruby Gentry, and authorized Meyers to represent his company on "the usual 10% commission basis." After various unsuccessful efforts at distributing the pictures, Meyers in New York telephoned Selznick in California on July 5; he inquired whether the films were still available, said he had "a very, very good prospect" in Sig Shore of Video Artists, reconfirmed the prices, and elicited from Selznick a promise that "my commission would be 10% of whatever money accrued to him as a result of any deal with Shore." A few days later he wrote Selznick about a meeting with Shore, who was about to go to California to see Selznick; the letter contained a postscript:
"P.S. Confirming our phone conversation that any deal concluded with Shore and or his interests is commissionable to me on the basis of ten per cent of the deal."
After various conversations between Shore and Selznick in California and Shore and Meyers in New York, Selznick telegraphed Meyers on July 27. He said the deal being negotiated with Shore, which was solely for the reissues, was much less advantageous than he had contemplated, and complained of Meyers' having exceeded his authority by offering Duel in the Sun and Ruby Gentry. The telegram continued:
"And in the event that there should be any deal for either or both of these pictures with Shore or anybody else, there will be no commission whatsoever. You have served thus far only to introduce us to each other by long distance. For this service and upon a waiver of all other claims, we are prepared to pay you five thousand dollars if and when this deal is consummated, but of course without paying you anything further on any other deals, if any, with Shore * * *. Please let me hear from you since we have no intention of closing even this deal with Shore, which as far as I am concerned, is a severe disappointment, if there is going to be any nonsense about commissions beyond this amount * * *."
Meyers immediately responded with a telegram offering to cut his commission to 5%; Selznick by reply wire rejected that offer.
That same day Meyers telephoned Selznick. According to his testimony, he protested about Selznick's "endeavoring to write me out of the deal on Duel and Gentry," whereupon Selznick told him to forget about those films since Selznick didn't think he was going to make a deal for them with Shore whose price had not come up to expectations, and urged him to "go along" on the theory that Meyers would "make it up on other deals." Meyers said he would go along "if it is understood we can do that," continuing "We'll make it up on other deals. Maybe you will compromise with Shore and make a deal with him. I'm willing. Maybe I'll get you a different buyer, I'll come up with half a million for the two pictures." Selznick allegedly assented.
The talk was swiftly followed by a telegram from Selznick, also on July 27, "to confirm your telephonic agreement on the limitation of your commission to five thousand dollars, as dealt with in my previous two telegrams." Receiving no answer Selznick telegraphed six days later:
"Deal almost concluded. Wire immediately your confirmation of commission arrangement as dealt with in my previous telegrams."
To this Meyers responded:
"Pursuant to our telephonic and telegraphic agreements I confirm our understanding my commissions to be Five Thousand Dollars."
Selznick's company thereupon entered into a license agreement with Harbor Productions, Inc., one of Shore's interests, relating to the 17 reissued pictures; in this Selznick agreed to pay Meyers "for service in connection with the licensing of the pictures hereunder * * * an agent's commission of $5,000.00, and no more." On September 17, in response to a request from Meyers, ...