Don J. McMurray Co. v. Wiesman

Decision Date30 November 1977
Docket NumberNo. 41198,41198
Citation199 Neb. 494,260 N.W.2d 196
PartiesDON J. McMURRAY CO., a corporation, Appellant, v. Benjamin D. WIESMAN, a/k/a B. D. Wiesman, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. The trier of fact is to determine a question of interpretation of an integrated agreement if the question depends on the credibility of extrinsic evidence, or on a choice among reasonable inferences from extrinsic evidence.

2. When the terms of a contract and the facts and circumstances that aid in ascertaining the intent of the parties to it are insufficient to raise an issue of fact, the interpretation of the contract is a matter of law.

3. The liability of a proposed borrower to a mortgage broker for securing a loan commitment in the absence of a special agreement to the contrary depends upon his production of a customer who is able, ready, and willing to make the desired loan upon terms satisfactory to the principal.

4. In the absence of an express stipulation to the contrary, the right to a commission is not dependent on the consummation of a loan.

5. The unjustified failure or refusal of the principal to complete a transaction does not ordinarily defeat the right of the broker to his commission as called for by the contract.

6. If an integrated contract is clear and unambiguous there is no need, nor is it permissible, to consider extrinsic evidence for the purpose of contradicting or varying the terms of a written contract.

7. If the actual closing of the loan is a contractual condition of the broker's right to a fee, then the failure to close forecloses the right to a fee.

Carl F. Nielsen of Morsman, Fike, Davis & Polack, Omaha, for appellant.

James F. Kasher of Brady, Kasher & Pavel, Omaha, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

CLINTON, Justice.

This is an action by plaintiff Don J. McMurray Co., a mortgage broker, upon a written contract to recover from the defendant, Benjamin D. Wiesman, a brokerage fee claimed to have been earned by having secured, on behalf of W-F Leasing, Inc., a commitment from Travelers Insurance Company for a long-term loan to finance a real estate development known as the Roman Plaza project, then in the process of construction. The contract in question was executed by W-F Leasing, Inc., by Benjamin D. Wiesman, president. A principal issue in the trial court was whether the fee had been earned and this issue involved interpretation of the contract. The plaintiff sought recovery from Wiesman personally on the theories that it was the intention of the parties that defendant be personally obligated, and, alternately, that W-F Leasing, Inc., was defendant's alter ego and that the corporate veil should be pierced.

A jury was waived and the matter tried before the District Judge who rendered judgment for the defendant. The plaintiff appeals to this court, making several assignments of error which may be consolidated in the following form: (1) The trial judge erred in interpreting the written contract between the parties to require plaintiff to do something more than just secure the loan commitment. (2) The trial judge erred in finding that the defendant was not personally liable on the contract and that the corporate veil should not be pierced.

The contract in question was contained in a letter agreement prepared by the plaintiff and addressed to the defendant individually. The letter agreement, in addition to setting forth the terms and conditions of a proposed loan to W-F Leasing, Inc., contained the following:

"5. The loan would be made to W-F Leasing, Inc., a Nebraska Corporation. There would be no personal guaranty required. . . .

"14. A 2% Good Faith Fee in the amount of $18,000.00 payable to Don J. McMurray Co. is enclosed with the application. If a commitment is issued based substantially in accordance with the terms and conditions outlined in this application, this check would be cashed by the Don J. McMurray Co. and you would be given full credit for this amount at the time of final loan closing as the 2% fee which is our charge for the handling of the loan. If a commitment is not issued based substantially in accordance with the above terms and conditions, then this check would be returned to you and there would be no fee due or payable to Don J. McMurray Co. However, if a commitment is issued on terms and conditions different than set forth in this application, but still acceptable by you, then a fee in the amount of 2% of the loan amount would be due and payable to the Don J. McMurray Co. on the same basis as outlined above." It contained the following form of acceptance. Prepared by plaintiff, which defendant executed by affixing the date and signing as president so that the completed acceptance was as follows:

"W-F LEASING, INC.

Date: 11-20-74

Accepted: /s/ Benjamin F. Wiesman, President

B. D. Wiesman President"

The evidence shows that, subsequent to the execution of the contract, the plaintiff secured a loan commitment from Travelers Insurance Company which, although containing some conditions different from that in the brokerage contract, was nonetheless accepted by W-F Leasing, Inc., by Benjamin F. Wiesman, president. The loan, however, was never consummated because the period of the commitment expired without W-F Leasing, Inc., having secured execution of a lease by the Goodyear company covering one of the properties involved in the development, this being one of the terms of the commitment. Defendant later secured a commitment and loan from another lender for the same project. The fee deposit called for by the contract had not been made. Plaintiff demanded payment from defendant for the brokerage fee. Defendant refused to pay and this action was begun.

The trial court interpreted paragraph 14 to require that something more than the securing of a loan commitment was required by the terms of the agreement and that, apparently because the loan was not consummated, the contract had not been fully performed, therefore the fee had not been earned. It also held that the corporate veil should not be pierced and the defendant should not be personally liable. It further found that the evidence would not support a finding that it was the intention of the parties to the contract that the defendant be held personally liable for the brokerage fee. The court said in part: "There is no basis in the evidence to support a finding that it was the intention of plaintiff and defendant that defendant would be personally liable for the fee. The language of the contract indicates just the opposite. All parties concerned with the negotiation of the contract were aware that the proposed interest rate would be usurious if it were required to be paid by an individual. If the parties had intended to provide that this defendant was to be individually liable for the fee, it would have been simple to say so in writing.

"The involvement of a corporate obligor was a benefit to plaintiff a sine qua non to the execution of the contract. In such a situation there is no justification for 'piercing the corporate veil.' "

Our first inquiry must be, what are the applicable standards by which this court reviews the judgment of the District Court. They are as follows: The trier of fact is to determine a question of interpretation of an integrated agreement if the question depends on the credibility of extrinsic evidence or on a choice among reasonable inferences from extrinsic evidence. Andersen v. Blondo Plaza, Inc., 186 Neb. 682, 186 N.W.2d 114; Ely Constr. Co. v. S & S Corp., 184 Neb. 59, 165 N.W.2d 562; Knight Bros., Inc. v. State, 189 Neb. 64, 199 N.W.2d 720. When the terms of a contract and the facts and circumstances that aid in ascertaining the intent of the parties are insufficient to raise an issue of fact, the interpretation of the contract is a matter of law. Nebraska Im-Pruv-All, Inc. v. Sass 197 Neb. 261, 247 N.W.2d 924; Grantham v. General Tel. Co., 191 Neb. 21, 213 N.W.2d 439. If, therefore, the interpretation of the agreement properly depended upon the consideration of extrinsic evidence, we are bound by the trial judge's determination unless it was clearly wrong. On the other hand, if no factual issue is involved we are free to determine as a matter of law the meaning of the contractual provision in question.

In general it may be said that liability of a proposed borrower to a mortgage broker for securing a loan commitment is governed by the same principles which apply in determining the liability of a seller to a real estate agent for the commission earned by having produced a buyer ready, willing, and able to purchase the listed property, i. e., in the absence of a special agreement to the contrary, the right of a broker to a commission, where the deal he is authorized to negotiate is not consummated, depends upon his production of a customer who is able, ready, and willing to make the desired loan upon terms satisfactory to the principal. 12 C.J.S. Brokers § 85a, p. 187; 12 Am.Jur.2d, Brokers, § 194, p. 936; Peet v. Sherwood, 43 Minn. 447, 45 N.W. 859. An implied condition of the contract of employment is (there being no express stipulation concerning the matter) that the borrower has the ability and will tender good title to the...

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    ...(Citations omitted.) Boston Five Cents Sav. Bank v. Dept. of Housing, 768 F.2d 5, 8 (1st Cir.1985). See, also, Don J. McMurray Co. v. Wiesman, 199 Neb. 494, 260 N.W.2d 196 (1977) (when terms of contract and facts and circumstances that aid in ascertaining intent of parties are insufficient ......
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