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General Language—“Disposition”—Limited in Scope by More Specific Words—“Sale or Transfer”

The First Department, over a dissent, determined that the rules of contract interpretation did not allow the collection of a “transaction fee” by plaintiff financial advisor with respect to the defendant’s purchase of notes in anticipation of the purchase of a mine.  When the financing for the mine fell through, the defendant sold back the notes in accordance with the purchase agreement with the seller of the notes.  The plaintiff sought a “transaction fee” for that transaction:

…[T]he motion court unreasonably construed the parties’ agreement in arriving at the conclusion that plaintiff was entitled to a “transaction fee” in connection with defendant’s aborted acquisition of a participation interest in the notes. The letter agreement provides that plaintiff is entitled to a “transaction fee” following the consummation or closing of a “transaction,” which it defines as the “sale, transfer or other disposition . . . [of] a portion of the assets, businesses or securities of [defendant].” The acquisition in question was admittedly not a “sale” or “transfer.” Nor can it be considered a “disposition,” as plaintiff contends. The term “disposition” does not appear in isolation in the agreement, but as a catch-all at the end of the phrase “sale, transfer or other disposition.” Thus, under the principle of ejusdem generis, the general language “or other disposition” must be construed as limited in scope by the more specific words “sale” and “transfer” that preceded it … . Miller Tabak + Co LLC v Senetek PLC, 2014 NY Slip Op 04418, 1st Dept 6-17-14

 

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