Opinion
April, 1912.
Hardy, Stancliffe Whitaker (Noah A. Stancliffe, of counsel), for appellant.
Louis W. Stotesbury, for respondent.
This action was brought by the plaintiff to recover commissions alleged to have been earned under a written authorization to procure a loan. The authorization was signed by the defendant on March 24, 1911, and the material part thereof reads as follows: "I hereby authorize Slawson and Hobbs to procure this loan, on obtaining which I agree to pay them two per cent. of the amount of loan to cover all charges including mtge. tax. This authorization to expire March 27th, 1911." It is clear that the defendant agreed to pay the plaintiff the commissions claimed provided that the plaintiff procured the loan on or before March 27, 1911. It is equally clear that procuring an agreement from a third person to make a loan is not the same thing as procuring a loan. Rosenthal v. Gunn, 119 N.Y.S. 165.
In Duckworth v. Rogers, 109 A.D. 168, 169, the court said: "The mere agreement by the trust company to make the loan was not sufficient to create a right in the plaintiff to the compensation sought. In Crasto v. White (52 Hun, 473) it was held that a broker employed to procure a loan on real estate was not entitled to his commissions on mere proof that he had secured a person able and willing to make the loan, who was accepted by his principal. The contract of brokerage in the matter of a loan differs from one with respect to a sale of real estate, in that it is not regarded as fully performed until the prospective lender actually makes the loan or refuses because of the fault or miscarriage of the principal."
The cases relied upon by the respondent are not contrary to the rule laid down in Duckworth v. Rogers, supra. Under the rule declared in that case the burden was upon the plaintiff to prove that it produced a man who actually made the loan on or before March 27, 1911, or that the lender procured by it was ready, willing and able to actually make the loan on or before March 27, 1911, but was prevented from so doing by fault of the defendant. This burden the plaintiff did not sustain.
The evidence discloses that the lender proposed was in Bermuda on March twenty-seventh and did not arrive in New York until April third or fourth and, while it is clear that the loan was accepted on March twenty-seventh by a duly authorized agent of the proposed lender, it is equally clear that the agent did not offer and was not ready, willing and able to make the loan on that day, nor was he prevented from so doing by the defendant. The fact is that on March twenty-seventh the agent contemplated making an agreement to lend and intended to make the loan at some future time. This is made clear by the fact that the application for an examination of title was not made on behalf of the proposed lender until March 29, 1911.
The plaintiff established that on March twenty-seventh, it procured from a third party an agreement to make the loan, but did not establish that it procured a loan or was prevented by the defendant from so doing before the expiration of the authorization upon which it sues.
GUY and BIJUR, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.