Felton v. Nurnberg

Bronson, J. This is an action on a contract to recover commissions due for negotiating a loan. The defendant has appealed from an order overruling a demurrer to the amended complaint. The contract incorporated in the complaint, and upon which the action is based, reads as follows: “This agreement is made for the purpose of procuring for Herman Nürnberg a loan upon his section 9, township 140, range 64. “It is hereby mutually agreed between B. F. Felton, party of the first part, and Herman Nürnberg, party of the second part, that the said party of the first part is to procure if possible, for the party of the second, a loan for the sum of $12,800 on the above-described land for a period of five years, with interest at 6 per cent per annum payable annually. And if the party of the first part is successful in obtaining the above loan, the party of the second part agrees to pay the party of the first- part the sum of $640 cash for his services in procuring said loan. “Said second party is to execute application this day, and first party is to forward it to this company, and if acceptable and loan made by [452] the said company, then this amount to be due the said party of the first •part from the party of the second part. If not acceptable, then and in that event the said party of the second part is in no wise indebted to the said party of the first part. Unless a smaller sum is accepted by the said party of the second part, in that event the said party of the second part is to pay the party of the first part, one half per cent per annum during the life of the loan in cash. The loan company described in the application is to accept or reject application within ten days from this date; and in case they accept of this application, it is hereby mutually agreed between the parties hereto, that the said loan is to be made as soon as clear title is furnished .by the second party hereto, and if it is not made within the time specified, this agreement is to be null and void.” In connection with this contract, the complaint further in substance alleges an oral agreement to pay a cash commission of $640 to be deducted from the loan, at the time the plaintiff furnished the money with which to make the same. Further that plaintiff obtained a loan for $12,800 at 6 per cent for five years payable annually, and requested the defendant to complete the loan by executing and delivering the necessary notes and mortgages; that the defendant declined to make such notes and mortgages and refused to carry out the written contract; that, notwithstanding that plaintiff had caused the moneys to complete such loan to be deposited in a bank on delivery upon compliance by the defendant with his part of the contract, the defendant refused to perform any part thereof. The complaint further alleges that the plaintiff has complied with all of the provisions and conditions of the contract on his part to be performed, and that the defendant has wholly failed to perform, and that there is due the plaintiff $640. Does the complaint state a cause of action ? The complaint seeks trecover the consideration specified in the contract upon allegations of full performance of the provisions and conditions thereof on the part of the plaintiff to be performed. The terms of the written agreement control and determine the sufficiency of the complaint as against the demurrer made in every particular, where the contract terms do not sustain the allegations as to its contents, and where the averments aro [453] contradictory of, or inconsistent with it, they will be disregarded. Johnson v. Kindred State Bank, 12 N. D. 336, 340, 96 N. W. 588. The terms and conditions of the contract imposed upon the parties’ were, respectively, as follows: Upon the defendant: 1. To execute an application for a loan in this company. 2. To furnish a clear title to the property involved. 3. To pay a commission of $640 in cash, if the application was acceptable and the loan made by this company. 4. To pay of 1 per cent per annum, during the life of the loan, in cash, as commission, if a smaller loan was accepted. Upon the plaintiff: 1. To forward the application of the defendant to this company. 2. To procure, if possible, a loan, as stated, from this company. Upon the part of this company: 1. To accept a loan on this property, pursuant to the application within ten days. 2. To make a loan thereon as soon as clear title to such property is furnished. The complaint does not allege that the plaintiff forwarded the application of the defendant to this company; it does not allege that this company accepted a loan on this property or agreed to make a loan thereof. The complaint does not allege the name of this company, although it is clear from the contract that a loan was to be made in a certain specific company whose name at least does not appear from the face of the contract or the pleadings in this record. The complaint furthermore does not allege that the plaintiff procured a loan from this-company pursuant to the contract for the defendant. i, It is true that the complaint has alleged generally compliance on the part of the plaintiff with the provisions and conditions of the contract-on his part to be performed. This is in accord with the statutory provision providing for a general allegation of due performance of conditions precedent in a contract. Comp. Laws 1913, § 7461. See Sifton v. Sifton, 5 N. D. 187, 190, 65 N. W. 670. The plaintiff, however, has further specifically pleaded that he obtained for the defendant a loan for $12,800, and requested the defendant to complete said loan by executing and delivering the necessary [454] notes and mortgages; that the plaintiff caused to be deposited with the bank the moneys to complete said loan. The general allegations, therefore, of due performance, do not aid in supplying the necessary allegations to show full performance on the part of this company and of the plaintiff, where the plaintiff has attempted to allege what he has actually done and where such facts so alleged fall short of showing due performance. 13 C. J. 728; Pease Oil Co. v. Monroe County Oil Co. 78 Misc. 285, 138 N. Y. Supp. 185. The allegations in the complaint, that the plaintiff procured a loan for the amount of the contract, and caused a deposit to be made for the amount thereof, is far from being a compliance with the terms of the contract providing for a loan with this company. See Henry v. Sacramento, 116 Cal. 628, 48 Pac. 728; 13 C. J. 728. The complaint is further defective not only in not showing the name of this company, but also in failing to definitely allege concerning the application which by the terms of the contract may have qualified or supplemented the written contract. The defendant in his brief has urged principally that the demurrer should be sustained for the reason that the contract by its terms provides for the payment of a commission only if the application is acceptable and the loan made. This argument is based upon the theory that no commission became due under the contract until the loan was actually made, in fact. We are of the opinion that this question cannot be determined as a qxxestion of law upon this record for the reason that the agreement itself contemplates the execution of an application and the acceptance of such application, before a loan shoxxld be made by this company. This would involve a construction of the ápplication in constrxxction with the agreement and the action of the company therexxpon before a legal interpretation could be given to the words “loan made.” It might possibly appear from the whole of such instrument and the action had that the intention of the parties concerning the use of such words would be a question of fact for the jury. See 13 C. J. 788; 9 C. J. 632, note 11. The trial court erred in overruling the demurrer. Its order is reversed. Robinson and Grace, JJ., concur. Birdzell, J. I dissent.