Clark v. Thompson Son Co.

The plaintiff has clearly earned his commission. On June 30th his efforts resulted in securing a party who was ready and willing to make a loan to the defendant within the time stipulated, and upon terms acceptable to and in fact accepted by the defendant, his employer.Leete v. Norton, 43 Conn. 219; Schlegal v. Allerton, 65 id. 260. The loan which the plaintiff had undertaken to secure, and for which the defendant had expressly agreed to pay, was on that day, through the plaintiff's agency, at the defendant's service. That it was not then and there consummated, was through no fault of either the plaintiff or the bank which stood ready and willing to make the loan. Nothing intervened save what is to be attributed to the defendant's fault. Under the terms of the plaintiff's employment the defendant was bound by implication to give the mortgagee produced a good title. Gauthier v. West, 45 Minn. 192;Middleton v. Thompson, 163 Pa. 112, 120; Gonzales v. Broad, 57 Cal. 224; Knapp v. Wallace, 41 N.Y. 477; Rockwell v. Newton, 44 Conn. 333. It is idle to inquire what the precise legal effect of the outstanding recorded deed of an interest in the property, under the circumstances, was. It clearly created such a cloud upon the title of the defendant that the bank was justified in refusing to make the proposed loan under the existing conditions.

It is contended on behalf of the defendant that upon discovery of the defect of title it was entitled to reasonable time to remove it. If so, certainly six months was not a reasonable time to expect a prospective mortgagee to hold funds to the amount of $44,000 at call without interest. The plaintiff's contract could not have involved an undertaking to produce a mortgagee willing to do this, and to make a loan after such a lapse of time regardless of changed financial conditions. Whatever reasonable construction be given to the plaintiff's undertaking, it is manifest that it was fully performed. Upon the facts found these legal conclusions clearly follow.

The defendant, however, excepts to the action of the court in finding certain of the facts contained in the finding. The subject-matter of these exceptions is for the most part either immaterial to the conclusions reached by us, or relates to conclusions of fact from subordinate facts also found. As we have dealt only with the subordinate facts, the defendant cannot be harmed by the conclusions objected to.

The only remaining exception of possible importance, relates to the finding of the court, to the effect that the defendant imposed upon the plaintiff, as a part of the agreement between them the condition that the loan must be procured by July 1st. This finding was not without support, and substantial support, in evidence.

The considerations herein expressed sufficiently indicate that the demurrer to the complaint was properly overruled.

There is no error.

In this opinion the other judges concurred.