sales people but technical or engineering people. They would engage persons like himself to book the use of their remote truck to those who needed them for particular dates and places.
He himself began work in this field as an owner of remote trucks, starting with one and eventually owning six. That enterprise, known as Northern Teleproductions Corporation, was disposed of by merger in 1975, and DBD Associates was started up to book trucks for users on a commission basis, which eliminates the capital investment, interest rates and other fixed expenses that accompany ownership. In some instances, a user with a TV program package would go to him with a schedule of 20 or 30 games on a schedule and have him make the arrangements, which sometimes included billing. He would then arrange for remote trucks to be provided for those occasions, charging a fee to his customer (the user) of 10% to 20%.
He had done business before with WHYY in 1977 when he had a Boston client who needed a remote truck and some studio time, and was put in touch with Moscone by a mutual friend in Boston who had worked with Moscone at WGBH there. He met with Moscone and Hall in Philadelphia, and was told he would be paid a 10% commission on such bookings.
When he booked for the truck for February, 1979, he did so through Moscone. He knew that when he left WHYY he was representing their mobile unit. He called Moscone for the bookings, although he had many contacts and truck owners that he might have called, because Moscone was a friend, was out of work at the time and was looking to get business for WHYY, Teletape and Unitel, and called him because he knew Moscone would then get the commission.
He made separate calls for the February and April dates, in both cases to Moscone.
Such transactions, for specific dates at specific locations cannot be regarded as establishing a claim of "ownership" of the client for future bookings in the absence of some express provision or established custom for one or another kind of exclusivity.
At trial, Moscone testified that it was not part of the agreement that WHYY would not book the truck except through him, or that he was expected not to book trucks except for WHYY.
Under these conditions, there would be no commission payable to Moscone unless he produced the booking and the bill was paid.
This relationship is more like that of a travel agent who is paid a commission for an airline, or a steamship company, or a hotel, if he produces the traveler for the particular occasion. The travel agent does not "own" the traveller. If he writes a ticket for A on United Airlines, he gets a commission. On another trip, he may write a ticket for the same traveller on TWA. Or, the traveller may buy a ticket directly from United Airlines or TWA, in which case no commission is payable to the travel agent.
In light of all the evidence, the court finds that the arrangement was one under which there was no obligation to pay any commission to Moscone unless he was the producer of the particular booking or lease.
Even if the arrangement was a "finder's" arrangement, it is clear that to recover as a finder Moscone would have had to show that he had authority from the customer, in this case, ESPN, to book trucks for them. The evidence is that Moscone had no part whatever in booking the one-year contract for 150 days that is the subject of this suit. His only contact was with Dudley Freeman, who had asked him to book the February and April dates so that he would receive a commission. Nothing in Freeman's testimony so much as suggests that he was asked by ESPN to book trucks on an extended schedule or basis after the Getty Oil funds became available. Nor does any of his or Moscone's testimony suggest that either one of them called Mason at WHYY to attempt to book the truck for the 150 days over the period of a year, although the news of the funding was well known in the trade.
The decision in Kaufman Inc. v. Amer. Mach. & Foundry, 102 N.J. Super. 1, 245 A.2d 202 (App. 1968) sets out a very thorough analysis of the "finder's" relationship, noting that it originated from the banking industry, citing New York and Ohio cases, and likening it to the "middleman" or "matchmaker" relation. See, "The Joys of Yiddish", by Leo Rosten, Pocket Books, N.Y., under "shadchen"
As Kaufman points out, it is essential to recovery by a "finder", "matchmaker" or "middleman" that he be authorized by the person produced to tender the proposal. In Kaufman, Tuboscope had explicitly refused to allow Kaufman to offer it as a merger or acquisition candidate even though Kaufman promised strict confidence and a guaranteed anonymity, despite which refusal it tendered the name to AMF. The absence of authority to submit Tuboscope as a prospect was held to be fatal to Kaufman's claim, and to require reversal of a favorable jury verdict judgment with direction to dismiss the complaint.
See, also, Inventive Music v. Cohen, 617 F.2d 29 (CA3, 1980), applying New Jersey law on a finder's claim, as requiring that the finder be the "efficient producing cause" of the transaction.
Findings of Fact.
1. WHYY, Inc. agreed orally, and recorded that agreement in writing by the Hall letter of August 22, 1978, to pay Moscone a 10% commission on commercial leases of its remote truck procured by him, payable on final billing and payment by the lessee.
2. The agreement has never been terminated and still is in full force and effect.
3. The only bookings for which Moscone was the efficient producing cause were the February bookings to DBD Associates, for which he was paid.
4. His claim to commissions for the April bookings to DBD Associates was disputed because the bookings were cancelled by Dudley Freeman, and some dates salvaged by Mason's efforts in dealing directly with ESPN, but the dispute was resolved by compromise and settlement. The settlement amount was paid.
5. The commercial client produced by Moscone for the February and April bookings was DBD Associates, not ESPN, or University of Connecticut or Fordham University, any of whom were free to book, or be booked, for the use of WHYY's truck directly and without obligation to Moscone, with whom none had any agreement or other legal relationship.
6. DBD Associates was free, if it had so chosen, to book the February and April dates directly with WHYY had it so chosen. Moscone's claim to a commission for the February and April dates rested on the authorization from DBD Associates to book the dates on its behalf.
7. ESPN did not authorize either DBD Associates nor Moscone to book any dates for the WHYY truck after the April dates.
8. Knowledge of ESPN's good fortune in receiving a grant from Getty Oil, and its plans to expand as a consequence, were well known in the trade at the time that WHYY's employee, Mason, conceived the notion of offering its truck for an extended schedule.
9. Neither Moscone nor DBD Associates suggested the approach developed by Mason and negotiated by him on July 3, 1979.
10. Moscone's claim to commissions was not limited to the production of new customers, as testified to by Hall (in deposition), since DBD Associates had previously booked rentals with WHYY in 1977, yet his bookings for it were recognized for the February and April dates.
Taking all aspects in the light most favorable to Moscone, his claim to commissions is at best dependent on a debatable fact issue (a) whether he was the efficient procuring cause, or (b) whether he had been authorized by ESPN to seek the bookings made from any remote truck owner.
The burden is on Moscone to establish one or the other of these ultimate facts by a simple preponderance of the evidence.
The court finds that the evidence, taken as a whole, without regard to who produced it, falls far short of establishing either of these, let alone both.
Final judgment will be entered for defendant and against plaintiff. A separate order is entered.