Holmes v. Frederick W. Berens, Inc.

EDGERTON, Associate Justice.

Appellants sued appellee for commissions on certain sales of mortgage notes. The claim rests ultimately on this letter which appellee sent appellants on June 23, 1939: “Following our conversation we herewith confirm our proposal and agree to pay you a commission of 1% on all mortgage loans, either F. H. A. or conventional, made or handled by this office with any company, providing the establishing of a connection between the purchaser of the loans and this office has been or is to be established through your direct contact. In other words, you are to arrange an appointment with one or more prospective purchasers of mortgage loans and if the eventual negotiations are successful we agree to pay the commission as outlined above on all loans purchased by the companies as indicated.”

The District Court found among other things that appellants introduced appellee’s president to a man in the loan department of the Guardian Life Insurance Company; that negotiations between appellee and Guardian followed, but were abandoned about August 1, 1939 because of changes in interest rates; that these negotiations never resulted in any transactions; that a year and a half later, in 1941, appellee made some sales to Guardian; but that “the connection between the defendant [appellee] and the Guardian Life Insurance Company which resulted in the purchase from the defendant by said Guardian Life Insurance Company of mortgages was not established by the contact or negotiations above referred to, nor by any activities of plaintiffs [appellants], but resulted from independent negotiations initiated late in 1940 by the President of the Guardian Life Insurance Company. There had been changes in the general mortgage and money market which led the officers of the Guardian Life Insurance Company to consider the purchase of Federal Housing Administration loans, among other places, in the Washington area, and to seek a loan correspondent in Washington. The President of the Guardian Life Insurance Company sought and made contact with the defendant company, as well as with other mortgage houses selected by him from those approved as mortgagees by the Federal Housing Administration. He determined whom he wished to contact in this connection from information obtained by him from sources unrelated to plaintiffs, and consequently called on and negotiated with defendant’s President on or about November 29, 1940.” The court also found as a fact that the letter of June 23, 1939 contemplated that “the negotiations mentioned in said letter were those to follow * * * consequent to the contact or appointment to be arranged by plaintiffs.” The court accordingly gave judgment to the defendant [appellee].

We think the record supports the findings. We need not recite the evidence. It does not vitiate the District Court’s interpretation of the letter of June 23. The mere fact that this interpretation is not clearly wrong is reason enough for sustaining it. Moreover, we think it right. We think the parties did not intend that appellee should pay for any coincidence which might occur, but for any sale which might result from an introduction which appellants supplied. Though the phrase “the establishing of a connection” might conceivably refer to a first connection, whether fruitful or not, we think it is more naturally interpreted as referring to a fruitful connection. However that may be, the final sentence of the letter conveys the idea rather clearly: “* * * you are to arrange an appointment with one or more prospective purchasers of mortgage loans and if the eventual negotiations are successful we agree to pay the commission * * We take “the eventual” negotiations to mean the negotiations which eventuate, or in plain language result,¹ from an appointment which appellants arrange. Since appellee undertook to pay a commission only in case these negotiations were successful, the success of quite other negotiations imposed no liability on appellee. Affirmed.

1 “Eventual * * *. Belonging to, or determined by, the outcome or issue * * *>> Webster’s New International Dictionary (Second Edition, Unabridged) 1943.

“Eventual * * *. Of the nature of an event or result * * *. Ultimately resulting.” Oxford Dictionary.

“Eventual * * *. Pertaining to the event or issue * * *Century Dictionary.