Charter Investment & Development Co. v. Urban Medical Services, Inc., s. 51168
| Decision Date | 23 October 1975 |
| Docket Number | Nos. 51168,No. 3,51197,s. 51168,3 |
| Citation | 220 S.E.2d 784,136 Ga.App. 297 |
| Parties | CHARTER INVESTMENT & DEVELOPMENT COMPANY v. URBAN MEDICAL SERVICES, INC. URBAN MEDICAL SERVICES, INC. v. CHARTER INVESTMENT & DEVELOPMENT COMPANY |
| Court | Georgia Court of Appeals |
Harland, Cashin, Chambers & Parker, Terrill A. Parker, Atlanta, for appellant.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, R. Alexander Bransford, Jr., Matthew H. Patton, Atlanta, for appellee.
The defendant corporation entered into a contract with the appellant (here referred to as CID) to procure a mortgage loan with the proceeds of which it intended to construct a private hospital. The contract provided: CID obtained a commitment from a mortgage lender on which the defendant noted acceptance, but which commitment was hedged with a number of stipulations which the defendant contended and the trial court found rendered it unenforceable. It was eventually abandoned and Urban obtained a loan from another source. CID sued for the brokerage fee. Held:
1. 'Merely negotiating a conditional agreement does not invest a broker with a right to a commission; he does not become entitled to a commission unless, and until, the condition is fulfilled or waived.' 12 C.J.S. Brokers § 86c, p. 198.
2. An alleged contract on which there is no firm agreement as to the cost is unenforceable. Malone Construction Co. v. Westbrook, 127 Ga.App. 709, 194 S.E.2d 619: Code § 20-107.
3. Contracts dependent upon a decision as to whether a cost to be determined in the future is feasible in the untrammeled discretion of one party are generally lacking in mutuality. Clayton McLendon, Inc. v. McCarthy, 125 Ga.App. 76, 186 S.E.2d 452.
4. The appellant would not be entitled to prevail in this contract action for a commission of 2% of the loan commitment procured by it unless it was able to establish the dollar value of such commitment, where the loan was never in fact made. The three letters relied upon in this case as establishing the contract between Urban Medical Services and the mortgage lender are not sufficient to establish that the base figure on which the 2% brokerage commission was to be paid would in fact have been $3,000,000. One of the stipulations contained therein was that there be an independent analysis and approval of feasibility, prior to closing, by a named third party, and that 'in no event will the loan amount exceed 60% of the estimated fair market value determined by said appraisal.' A maximum building cost was tentatively assessed by this entity at a figure somewhat lower than the portion of the $3,000,000 intended to be allocated to building cost, and a land appraisal was rejected as failing to support the land value. It is thus clear that there...
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