Marshall & Co. v. Weisel

• Decision Date: 12 May 1966
• Citation: 51 Cal.Rptr. 183,242 Cal.App.2d 191
• Court: California Court of Appeals Court of Appeals
• Parties: MARSHALL & COMPANY, Inc., Plaintiff and Respondent, v. Hyman WEISEL, Jim Lipschutz and Peter Gold, Individually and dba Fontainbleu, a co-partnership, Defendants and Appellants. Civ. 22683.

Page 183

51 Cal.Rptr. 183

242 Cal.App.2d 191

MARSHALL & COMPANY, Inc., Plaintiff and Respondent, v. Hyman WEISEL, Jim Lipschutz and Peter Gold, Individually and dba Fontainbleu, a co-partnership, Defendants and Appellants.

Civ. 22683.

District Court of Appeal, First District Division 2, California.

May 12, 1966.

Marlais & Hover, by Wade H. Hover, San Jose, for appellants.

John N. Pope, Jr., San Jose, for resondent.

AGEE, Justice.

Defendants Weisel, Lipschutz and Gold appeal from a judgment of $13,000 entered against them in favor of plaintiff, a corporation, following a nonjury trial. On appeal Gold has abandoned any separate defenses, taking the position that if the judgment is valid as against his co-defendants it may be deemed to be good as against him.

Respondent is a licensed real estate broker and as such negotiates loans on real estate for a fee. (Bus. & Prof.Code § 10131.) Detweiler is one of its officers.

In the first part of August, 1962, Weisel and Lipschutz, co-partners doing business as 'Fontainbleu,' were desirous of obtaining construction financing for a proposed apartment house project.

An appraiser for a savings and loan association offered to help and he took a set of preliminary plans and other data to one Bisnett, a licensed real estate salesman employed by one Alexander, a licensed real estate broker. The plans called for 123 units.

On or about August 15, 1962 Bisnett contacted Detweiler and delivered the plans and other information to him. On August 16, 1962 Detweiler conferred with one Caskey of E. S. Merriman and Sons, a mortgage loan correspondent representing various life insurance companies interested in making large real estate loans. Caskey looked over the plans and expressed interest in the project. Detweiler reported this to Bisnett.

On September 4, 1962, by prearrangement, Detweiler met with Weisel and Lipschutz at their office. Detweiler had prepared and brought with him a printed form of commission agreement. Weisel read it over and stated that it was unsatisfactory. He did not state any specific objection.

Detweiler told Weisel that he would have to have a signed agreement before he would 'introduce him to any of our sources.' Weisel then said that he would draw up an agreement. Weisel and Lipschutz thereupon went into another office and came back after a time with the typed agreement upon which respondent bases the instant action. All three signed it and then proceeded to Caskey's office in San Francisco.

The agreement provides that if Fontainbleu consummated a 'take-out' loan from an insurance company (not named) 'which you (Detweiler) or your company (respondent) have caused to come about, that we (Fontainbleu) will pay you 1% Commission for your efforts in obtaining said loan.'

A three-hour conference was held with Caskey on said September 4, 1962. Caskey had had no prior dealings with Weisel and Lipschutz and he did not know them.

On September 18, 1962 Weisel and Lipschutz signed an application at Caskey's office calling for a loan of $1,235,000. Caskey testified as follows: 'Upon execution of the application we called for the normal things including financial statements. When these statements came in, it was determined that the two individuals were not able to show equity capital to cover the difference between the cost of the project and the amount of the loan requested.'

Caskey phoned this information to Detweiler and told him that 'everything looked fine except for the financial strength of the applicants.' Detweiler immediately called Bisnett and asked if he knew of anyone who could increase the financial strength of the application.

Bisnett contacted appellant Gold and asked him if he was interested in participating in the transaction. He told Gold that 'Mr. Detweiler had informed me that he had obtained a tentative commitment for a loan for the project but that the lender felt that Mr. Weisel and Mr. Lipschutz' financial statement was not strong enough to carry the project, and that if they got additional backing, someone to sign with them, that they would make the commitment.'

Gold indicated that he might be interested. Bisnett then called Weisel and he agreed to meet with Gold. This led to an agreement between Weisel, Lipschutz and Gold that Gold would have a fifteen percent interest in the project and that he would add his personal guarantee to the loan papers.

A second loan application was then filed with Caskey. On December 7, 1962, Caskey's correspondent insurance company, Manufacturer's Life Insurance Company, issued its firm commitment to lend $1,300,000 and appellants accepted the loan. After appellants refused to pay any commission to respondent, this action was filed on May 1, 1963.

Appellants' contentions are based largely upon their interpretation of the facts, contrary to the rule that on appeal the evidence must be viewed in the light most favorable to the respondent.

The agreement of the parties is attacked as being indefinite because the time for respondent's performance is not specified therein.

Where a contract does not specify the time for performance a reasonable time is allowed. (Civ.Code § 1657.) Here the court found that performance within 120 days was 'a reasonable time for plaintiff to perform the loan services required of it by the terms of said written agreement.'

A firm loan commitment from the lender was obtained on December 7, 1962. This is 94 days after the signing of the agreement. Caskey, an expert in such matters, testified that a loan broker's services to his client were completed upon the obtaining of a firm loan commitment from a lender able and willing to make the loan and that time limits in such service contracts 'vary from thirty to ninety or maybe a hundred and twenty days.'

The same witness also testified that the reasonable period of time within which a loan broker can obtain such a loan would 'range from thirty days to ninety to one hundred and twenty days.'

Detweiler testified that, just prior to the signing of their agreement, he answered Weisel's question as to how long it would take to obtain the loan by stating that 'this type of loan was not a deal that could be put through in a hurry.' This prophecy proved to be sound.

'The question of what constitutes a reasonable time is always a fact question. (Citations.) In determining what period of time would be reasonable, the situation of the parties, the nature of the transaction, and the facts of the particular case should all be considered.' (Stark v. Shaw, 155 Cal.App.2d 171, 177, 317 P.2d 182, 185.)

We think that there is substantial evidence to support the trial court's finding as to what is a reasonable time within which respondent was required to perform its services under the agreement.

The next finding attacked by appellants reads as follows: 'The take-out loan referred to in said written agreement was and is the sum of $1,300,000.00.'

Detweiler testified that the amount of the loan discussed by him, Weisel and Lipschutz at and prior to the time of the signing of the agreement was $1,230,000. When the loan application was made two weeks later, the amount was raised to $1,235,000. When the second loan application was made, on November 20, 1962, the amount was raised to $1,300,000.

Appellants argue that the court's finding that $1,300,000 is the loan amount in reference to which the parties contracted on September 4, 1962, 'is obviously a flight of judicial fantasy, as that amount was decided upon only on November 20, 1962, * * *.'

The point hardly merits discussion. The clear meaning of the finding is that the loan which was consummated was the Same loan as that referred to by the parties in their agreement. It negatives the contention that simply because the amount of the loan was larger than originally applied for, it became a Different loan than that covered by said agreement.

When appellants drafted the agreement they did not specify the dollar amount of the loan, describing it only as 'a firm takeout, from an Insurance Company, for the above development. * * *' (The development was referred to in the agreement...