Frenzer v. Dufrene
| Decision Date | 06 April 1899 |
| Docket Number | 8661 |
| Parties | JOHN N. FRENZER v. ALFRED R. DUFRENE |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before BLAIR, J. Reversed.
REVERSED AND REMANDED.
Will H Thompson, for plaintiff in error:
Where defendant assigns a reason for refusing to keep his agreement he cannot base his refusal on other grounds after he has been sued. (Foley v. Holtry, 41 Neb. 563; Ballou v Sherwood, 32 Neb. 666; Ohio & M. R. Co. v. McCarthy, 96 U.S. 258.)
Plaintiff's offer to cash the note was sufficient.
Howard B. Smith, contra:
The agent's right to recover commission does not exist until he furnishes a lender able, willing, and ready to make the loan. (Jones v. Stevens, 36 Neb. 849; Barber v. Hildebrand, 42 Neb. 400; Mayer v. Ver Bryck, 46 Neb. 221.)
Plaintiff cannot recover, for the reason that he failed to cash the Spotts note. (Rice v. Gibbs, 40 Neb. 264.)
The opinion contains a statement of the case.
This action was brought by John N. Frenzer against Alfred R Dufrene and tried to a jury in the district court of Douglas county. In the first count of the petition, with which alone we are concerned, it is alleged that there is due to the plaintiff from the defendant the sum of $ 375 on an express contract for services rendered in negotiating with the Penn Mutual Insurance Company for a loan upon Omaha real estate. The defenses relied upon were (1) that the company did not make the loan and was not ready to make it, and (2) the non-performance by the plaintiff of a concurrent promise to cash a $ 1,500 note executed by Eugene Spotts to Julia Shaw and by her transferred to the defendant. The reply admits that the plaintiff agreed to cash the Spotts note, avers a constant readiness on his part to perform the agreement, and notice to the defendant of that fact. The trial court was of opinion that the evidence was insufficient to warrant a verdict for the plaintiff and peremptorily directed the jury to find against him. The court was wrong and the judgment rendered in favor of the defendant must be reversed.
The evidence either establishes or tends to prove the following facts: The litigants reside in Omaha. The plaintiff is a real estate and loan agent. In 1894 the defendant desired to borrow $ 18,000 to be used in the construction of buildings upon real estate owned by him. The plaintiff proposed to negotiate the loan for a commission of two and one-half per cent. The defendant accepted the proposition, and his application for an $ 18,000 loan, to be secured by a real estate mortgage, was soon after forwarded to the Penn Mutual Life Insurance Company at Philadelphia. The company declined to loan $ 18,000, but offered to loan $ 15,000. This offer was eventually accepted in connection with an agreement on the part of Frenzer to cash the Spotts note and thus enable Dufrene to obtain at once the sum of $ 16,500 to use in the construction of his buildings. The application to the loan company provided that the principal and interest of the loan should be paid, "at the option of the lender, in gold coin of the present standard of weight and fineness, or its equivalent." There was some delay in consummating the transaction, owing principally to apparent infirmities in defendant's title to the property offered as security, so that before the bond and mortgage were ready for execution Frenzer, in fulfillment of a prior engagement was obliged to make a trip to the state of California. In his absence his clerk, M. Grocox, was authorized to act for him. About April 10 the bond and mortgage were prepared and handed to the defendant for examination. He made some objection on account of the gold clause, but a day or two later handed the papers to Mr. Grocox to be sent to the loan company for examination and approval. The company returned them about April 20, when they were delivered to the defendant to be signed and acknowledged. They were received for that purpose without objection. Not being presently returned, Grocox called at Dufrene's office and also at his residence several times to get them. He did not succeed in his purpose, but Dufrene informed him that they had not been signed; that Mrs. Dufrene was reluctant to sign on account of the gold clause, but that she would probably sign in a few days. The defendant also suggested that Grocox should not call again at the house until informed that the papers were ready for delivery. The papers were afterwards signed, but were not acknowledged or delivered, and nothing further was ever done by the defendant to bring the matter to a conclusion. When the note and mortgage were ready for delivery they were to be handed to the law firm of Montgomery, Charlton & Hall, who were thereupon to wire their client, the loan company, to forward the money. On May 3 Mr. Hall inquired of Dufrene why the loan had not been closed, and was informed that Mrs. Dufrene had not yet signed the papers. No other reason was given. On May 15 Frenzer returned to Omaha and at once wrote to the defendant to know why the loan had not been closed and offering to cash the Spotts note. Dufrene did not reply. About May 26 the parties had a conversation, in which the defendant assigned as his only reason for not closing the loan that he objected to the gold clause and his wife refused to sign the mortgage. On June 4 Dufrene told Frenzer that he might yet close the loan and would let him know definitely in regard to the matter by the following Thursday. As late as June 18 the loan company was ready to close the loan. Plaintiff has been ever ready to take the Spotts note. These are the facts which the jury might have found from the evidence; and they are quite sufficient to sustain a judgment in favor of the plaintiff. They show that Frenzer procured a lender ready, able, and willing to loan him $ 15,000, and that he refused, without adequate reason, to deliver the securities which he agreed to furnish. They show that in the first instance he refused to execute a mortgage containing a...
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...a deed. Plaintiff had obligations of performance as well as defendant. This court dealt with such a situation in Frenzer v. Dufrene, 58 Neb. 432, 78 N.W. 719, wherein it was held: ‘Where stipulations of parties are dependent, and to be performed concurrently, mutual readiness to perform is ......
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