Dovenmuehle, Inc. v. K-Way Associates

388 F.2d 940

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 10, 1968
• Docket: No. 16109
• Status: Published

Opinions

CUMMINGS, Circuit Judge.

In this diversity action, Dovenmuehle, Inc., a Chicago-based mortgage banking concern, sued K-Way Associates, a New York limited partnership, and four general partners to recover a 1% service fee and various expenditures. After a bench trial, the District Court entered detailed findings of fact and conclusions of law in plaintiff’s favor and dismissed defendants’ counterclaim. We agree with this disposition.

The findings, reflecting the record, reveal these facts: Prior to March 1963, defendants planned to erect two shopping centers in Arizona. They had acquired Hayden Plaza East in Tempe and had obtained an option to purchase Hayden Plaza West in Phoenix. They also had entered into a lease with Woolco, F. W. Woolworth Company’s leasing corporation, providing for Woolco and Woolworth to be a major tenant of both shopping centers.

On March 1, 1963, defendants applied to Dovenmuehle for mortgage financing. These loan applications were for $4,800,-000. The applications provided a 1% service fee for Dovenmuehle, 1% if defendants did not perform, and a 1 % good faith deposit. The applications were subject to Dovenmuehle’s ability to arrange a $500,000 loan to K-Way for the purchase of Hayden Plaza West and for construction at Hayden Plaza East. These applications were not approved by Dovenmuehle in the space provided. The approval line on each application read:

“Assigned W.J.H. [William J. Hoppe] Approved (1) * * * (2) * * * ”

In March and April or May 1963, defendants borrowed a total of $500,000 from the First National Bank of Albuquerque, New Mexico, to purchase Hayden Plaza West and to commence construction on Hayden Plaza East.

On April 23, 1963, defendants applied to New York Life Insurance Company for loans on these two properties in the total amount of $4,700,000. The applications provided that the defendants would pay New York Life 1% of the amount of the loans if defendants should not accept a commitment issued by New York Life. These applications were endorsed by Dovenmuehle as broker but were not approved by New York Life. Dovenmuehle is a correspondent of New York Life. From time to time, Doven-muehle tenders proposed loans to New York Life for their acceptance. After New York Life purchases loans, Doven-muehle services them for a fee paid by New York Life.

On May 31, 1963, Dovenmuehle obtained a commitment from New York Life to advance a first mortgage loan of $3,525,000 (or, alternatively, $4,400,000 on additional conditions) on the two Arizona shopping centers. One of the conditions of the commitment was that K-Way must first obtain certain leases in both centers. The commitment required Dovenmuehle to deposit a $22,200 check and a $22,200 note payable to New York Life to serve as liquidated damages in the event of default. May 1, 1964, was the expiration date of this commitment.

On June 3, 1963, Dovenmuehle wrote K-Way and agreed to make either the $3,525,000 or $4,400,000 mortgage “On the basis of compliance by K-Way Associates with the conditions set forth” in New York Life’s May 31„ 1963, attached letter to Dovenmuehle. Doven-muehle agreed to supply “interim construction funds” to K-Way when the conditions of New York Life’s May 31 commitment were fulfilled by K-Way. In its letter to K-Way, Dovenmuehle adverted to New York Life’s requirement of a cash deposit of $22,200 and a $22,200 promissory note. In this connection, Dovenmuehle specifically referred K-Way to the liquidated damages provision contained in New York Life’s May 31, 1963, commitment. Dovenmuehle’s letter also stated that its service fee in procuring New York Life’s commitment would be $44,400 (1% of the loan) plus travel expenses and counsel fees and disbursements. Dovenmuehle required from K-Way a $22,200 check and a $22,200 note, both payable to New York Life. The check and note were in turn to be deposited with New York Life under the liquidated damage provision contained in its May 31, 1963, commitment to Doven-muehle. Defendants accepted the Doven-muehle commitment on June 6, 1963, and sent Dovenmuehle the prescribed cheek and note payable to New York Life. On June 10, 1963, Dovenmuehle in turn accepted the New York Life commitment.¹

On July 17, 1963, Dovenmuehle sent K-Way a detailed report listing the unfilled conditions that would have to be met before New York Life’s $3,525,000 loan would issue. Defendants did not comply with these conditions. However, in July 1963, with Dovenmuehle’s consent and cooperation, defendants used the 1963 commitments of Dovenmuehle and New York Life to obtain a $4,400,-000 construction loan from Valley National Bank of Phoenix, Arizona.

On August 6, 1963, Dovenmuehle submitted a “superseding” commitment letter, providing, inter alia, that the conditions of New York Life’s commitment letter of May 31, 1963, were applicable to K-Way. Defendants accepted this superseding commitment on August 9, 1963. Dovenmuehle’s August 6 commitment did not provide for any interim construction loan to K-Way, for K-Way had already received such a loan, in the sum of $4,-400,000, from Valley National Bank of Phoenix.

After the issuance of the 1963 commitments, Dovenmuehle explained to defendants that the 1%, or $44,400, deposited with New York Life would be retained by that company as liquidated damages in the event of default. Doven-muehle also explained that an additional 1% fee and certain expenses were due from K-Way as Dovenmuehle’s charge for procuring the New York Life commitment.

From January through March 1964, defendants admitted that they would be unable to meet the conditions of the 1963 commitment before its May 1, 1964, expiration date. On March 24, 1964, K-Way requested Dovenmuehle to negotiate an increase in the mortage commitment to $4,865,000 and an extension until November 15, 1964.

On April 28, 1964, Dovenmuehle was able to obtain a New York Life commitment for a $4,640,000 mortgage on the two shopping centers. The new deadline for meeting New York Life’s conditions was November 15, 1964. The commitment required an additional $2,000 as liquidated damages.

The next day Dovenmuehle issued its commitment letter to K-Way, agreeing to make the mortgage loan “On the basis of compliance by K-Way Associates with the conditions set forth” in the April 28, 1964, commitment letter of New York Life Insurance Company, Dovenmuehle’s commitment stated that those conditions “shall apply to K-Way Associates.” Dov-enmuehle’s letter called defendants’ attention to the liquidated damages provision of New York Life’s commitment and stated:

“By your acceptance of this commitment letter you agree that the second paragraph on Page 4 of the New York Life Insurance Company [April 28, 1964] commitment letter relating to the liquidated damage obligation is incorporated herein by reference and is made a part hereof, and that the obligation therein shall apply to the payment of the $44,400 heretofore made by you, as well as to the additional $2,-000 you are returning along with the accepted copy of this commitment.”

Dovenmuehle’s April 29 letter also advised K-Way that it was to pay Doven-muehle a 1% (or $46,400) fee for procuring the initial and subsequent commitments, with Dovenmuehle’s travel expenses, outside counsel’s $10,000 fee and expenses also to be paid by defendants.

On May 1, 1964, K-Way accepted the new commitment and arranged for the additional $2,000 in liquidated damages to be forwarded to Dovenmuehle from defendants’ New York Office.

In August 1964, defendants acknowledged their obligation to pay Doven-muehle its 1% service fee but told Dovenmuehle that they could not afford to pay the fee at that time.

Defendants were unable to meet the lease requirements of the April 28, 1964, New York Life commitment and were still in default on the November 15, 1964, expiration date thereof. New York Life terminated its commitment on November 17, 1964, and retained as its liquidated damages the $46,400 that had been deposited with it.

Defendants refused to pay Doven-muehle the following amounts:

$46,400.00 (or 1% of the loan) for Dovenmuehle’s services in procuring the commitments

935.11 for Dovenmuehle travel expenses

10,000.00 for services of Doven-muehle’s outside counsel

454.58 for disbursements of outside counsel

$57,789.69

The District Court entered judgment for Dovenmuehle in this amount. This appeal followed.

The defendants’ three-count counterclaim was dismissed by the District Court. Defendants insist that under Count I of the counterclaim they are entitled to $400,000 damages for increased construction costs resulting from Dovenmuehle’s alleged failure to make “front money” and construction loans to K-Way. The other counts of the counterclaim are no longer pressed.

March 1963 Mortgage Applications

K-Way first argues that its March 1, 1963, signed applications to Dovenmuehle for mortgage financing constituted binding contracts between K-Way and Dovenmuehle. The trial court held to the contrary and we agree that there was substantial evidence to support its factual findings that Doven-muehle did not accept these offers. Therefore, its conclusion, based on such findings, that there were no contracts cannot be set aside. Greiner v. Chicago and Eastern Illinois Railroad Company, 360 F.2d 891, 895 (7th Cir. 1966). Our examination of both applications shows that the approval line in each was left blank by Dovenmuehle. The trial court saw the witnesses and chose to believe Dovenmuehle Vice Chairman William J. Hoppe’s testimony that he did not promise to produce the requested $4,800,-000 loans and that he had advised defendants that Dovenmuehle was still negotiating with New York Life for the loan that was eventually offered to K-Way. Consistently with the blank approval line on each application, Hoppe also testified that these applications had never been approved by Dovenmuehle. Consequently, it is immaterial that Hoppe and K-Way partners Frederick W. Kretzer and Donald Levine initialed various changes in the applications. The evidence is surely sufficient to support the District Court’s finding that Doven-muehle had not accepted or approved the March 1963 applications, thus justifying the conclusion that they were not contracts.

Defendants rely on Calo, Inc. v. AMF Pinspotters, Inc., 31 Ill.App.2d 2, 176 N.E.2d 1 (1961), but there the nonsign-ing offerees were held bound because offer. Here, as seen, the District Court’s their acts showed their acceptance of the contrary finding is permissible on this record. Banking-Trading Corporation v. Floete, 257 F.2d 765, 769 (2d Cir. 1958). In the two other Illinois cases relied upon by defendants, the parties had signed the contracts with the intention of binding themselves. See First National Bank of Elgin v. Husted, 57 Ill.App.2d 227, 205 N.E.2d 780 (1965), and Fink v. Schleu-ter, 206 Ill.App. 159 (1917). As stated in 1 Williston on Contracts (3d Ed. 1957) § 22a, the courts should “guard against abuse of this doctrine [implying consent] as a means of thrusting contracts upon people.”

Since we are not disturbing the District Court’s conclusion that the March 1963 applications were not contracts, we need not consider defendants’ ensuing argument that under these “contracts” they had only agreed to pay Dovenmuehle a service fee of 1% of the loans and nothing else to Dovenmuehle or New York Life.

19 6 U Obligations of Defendants

Stating that they were already bound by the March 1963 “contracts,” defendants next contend that there was no consideration for their May 1, 1964, agreement to deposit $46,400 as liquidated damages for New York Life and also to pay Dovenmuehle’s travel expenses and its outside counsel’s $10,000 fee and expenses, all pursuant to Dovenmuehle’s commitment letter of April 29, 1964. This contention cannot be accepted, for it is based on the untenable ground that the March 1963 applications constituted contracts. Since they were properly held not to be contracts, there was consideration for K-Way’s May 1st assent to the terms of Dovenmuehle’s April 29th commitment letter. Thus Dovenmuehle’s promises in that letter were of course sufficient consideration for K-Way’s assent to the conditions imposed therein. Defendants do not dispute the District Court’s finding that no duress was exerted on them.

Defendants urge that even under the Dovenmuehle commitment letter of April 29, 1964, accepted by K-Way on May 1, 1964, they were not obligated to pay both a 1% liquidated damage fee to New York Life and a 1% service fee (plus various expenses) to Dovenmuehle. Defendants certainly intended to deposit $46,400 with New York Life as liquidated damages, for they transmitted a $22,200 check and a $22,200 note, both payable to New York Life, to Dovenmuehle for transmittal to New York Life.² As to the additional $2,000, defendants sent Dovenmuehle a check in that amount, and Dovenmuehle agreed in its April 29, 1964, commitment letter to forward its $2,000 check to New York Life for the balance of the liquidated damage obligation. These deposits were in compliance with the plain terms of the April 29, 1964, Dovenmuehle commitment letter as accepted by defendants on May 1. That letter stated:

“On the basis of compliance by K-Way Associates with the conditions set forth in the attached [April 28, 1964] commitment letter of the New York Life Insurance Company, Doven-muehle, Inc. agrees to make to K-Way Associates the mortgage described therein. It is to be understood that the conditions as set forth in the attached New York Life Insurance Company commitment, although addressed to Dovenmuehle, Inc., shall apply to K-Way Associates.”

Those conditions included a deposit of $46,400 with New York Life as liquidated damages. Defendants’ May 1 acceptance, of course, made these conditions applicable to them.

K-Way’s obligation to deposit $46,400 liquidated damages with New York Life was made even plainer by the following two paragraphs of Dovenmuehle’s April 29 commitment letter:

“As you will note, from the second paragraph on Page 4 of the attached New York Life Insurance Company [April 28, 1964], commitment, New York Life Insurance Company requires from Dovenmuehle, Inc. a cash deposit of $46,400, which will be the amount of the liquidated damages in case the loan transaction is not closed. You will further note that New York Life Insurance Company acknowledges that it has in hand the sum of $44,400 and requests a Doven-muehle, Inc. check in the amount of $2,000 for the balance of the liquidated damage obligation. We should appreciate it if you will forward to us your check in the amount of $2,000, payable to Dovenmuehle, Inc., and we, in turn, will forward our check in a like amount to the New York Life Insurance Company.

“By your acceptance of this commitment letter you agree that the second paragraph on Page 4 of the New York Life Insurance Company commitment letter relating to the liquidated damage obligation is incorporated herein by reference and is made a part hereof, and that the obligation therein shall apply to the payment of the $44,400 heretofore made by you, as well as to the additional $2,000 you are returning along with the accepted copy of this commitment.”

In our view, there is no ambiguity in the liquidated damage requirements or in their applicability to defendants.

Conceding that they were bound to pay a 1% service fee to Dovenmuehle,³ defendants nevertheless contend that their acceptance of the April 29 commitment did not bind them to pay anything else to Dovenmuehle. This contention is punctured by the following language of the April 29 Dovenmuehle commitment accepted by defendants:

“All fees and expenses specifically required by the New York Life Insurance Company are to be paid by the borrower [K-Way], with the total of such fees and expenses not to exceed $2,500.⁴ The fee to be paid by K-Way Associates to Dovenmuehle, Inc.- for its services in procuring the initial commitment and the subsequent increase, as indicated by the attached New York Life Insurance Company commitment, will be $46,400. In addition, all travel expenses of Doven-muehle, Inc. personnel in connection with this transaction, both to Phoenix and to New York, are to be paid by the borrower. In addition thereto, the borrower agrees to pay for the services of Dovenmuehle, Incorporated’s outside counsel, Prank C. Bernard, the sum of $10,000 plus all his disbursements including, but not limited to, telephone calls, travel expenses, mimeographing and photostating.”

The April 29 letter required defendants to deposit $46,400 with New York Life as potential liquidated damages. The defendants satisfied this obligation.⁵ The April 29 letter also obligated them to pay plaintiffs a service fee of 1% on the loans committed, namely, $46,400, as well as certain travel expenses of Dovenmuehle’s personnel, and the $10,000 fee of Dovenmuehle’s outside counsel, together with his disbursements. Having only paid the $46,400 liquidated damages held by New York Life, the defendants must now pay Dovenmuehle the other obligations which they assumed on May 1st. These total $57,789.69.⁶

Counterclaim

In Count I of their counterclaim, defendants have sued to recover $400,000 for allegedly higher construction costs because Dovenmuehle did not provide a $200,000 “front money” Hayden Plaza East construction loan and a subsequent $4,400,000 construction loan. The trial court was entitled to credit Mr. Hoppe’s denials of promising such funds or of urging defendants to commence construction. He testified that one of the reasons Dovenmuehle reduced its service fee from 2% to 1% was because defendants intended to do their own construction financing. Defendants admit that Dovenmuehle “helped arrange the $200,000 temporary construction loan” obtained from the First National Bank of Albuquerque in April or May 1963. They used Dovenmuehle’s and New York Life’s 1963 commitments to obtain a $4,400,000 construction loan from the Valley National Bank of Phoenix in August 1963. Furthermore, in May 1963, Dovenmuehle had obtained for defendants a $4,400,000 mortgage commitment from New York Life, increased to $4,640,000 in April 1964. This amount was held available to defendants for almost eighteen months, until November 17, 1964. Since the March 1, 1963 applications never became contracts, defendants could not assume that the final commitments from New York Life and Dovenmuehle would not impose any conditions with respect to leases at the two shopping centers. Such conditions would certainly be normal in connection with loans of this magnitude and were not negated in Dovenmuehle’s May 9, 1963, letter to the First National Bank of Albuquerque supporting defendants’ request for a $200,000 Hayden Plaza East construction loan.⁷ According to defendants’ brief, construction started in April 1963, so that there was no reliance on the May 9th letter, and Dovenmuehle’s June 3,1963, commitment letter advised defendants that it would not supply interim construction funds until New York Life’s leasing and other conditions were fulfilled by defendants. Furthermore, experienced businessmen like K-Way’s partners could foresee that it might take a few months to process the applications. Only defendants’ failure to provide the required leases prevented it from procuring this money from New York Life. The record does not support their charges that Dovenmuehle breached any commitment to them. Therefore, Wheeler v. White, 398 S.W.2d 93 (Tex.Sup.Ct.1965), is inapplicable.

Count I of the counterclaim is based on a promissory estoppel theory entitling the promisee to recover if the promise induced detrimental action. See 1 Restatement of the Law of Contracts, § 90. However, the trial court could properly credit Hoppe’s denials of promises of Dovenmuehle construction loans. Additionally, Illinois requires fraud or intent to deceive before there can be recovery under a promissory estoppel theory. Hughes v. Encyclopoedia Brittanica, Inc., 1 Ill.App.2d 514, 521, 117 N.E.2d 880 (1954), leave to appeal denied ; Bredemann v. Vaughan Mfg. Co., 40 Ill.App.2d 232, 249, 188 N.E.2d 746 (1963). Defendants adduced no such proof. Accordingly, the dismissal of Count I of the counterclaim was justified.⁸ The other two Counts of the counterclaim have been abandoned.

Affirmed.

1 . In late June 1963, at the request of New York Life, Dovenmuehle substituted its $22,200 check and $22,200 note for K-Way’s check and note. K-Way delivered to Dovenmuehle its check and note in like amounts, payable to Dovenmuehle. The liquidated damages deposit was to be returned to K-Way if it procured the leases required by the commitment instead of defaulting.

2 . See note 1, supra. As late as February 1964, according to correspondence of record, all parties considered the deposits with New York Life to be K-Way’s and not Dovenmuehle’s.

3 . This concession accords with defendants’ August 1964 admission that they wore then financially unable to pay Doveri-muelilc’s fee.

4 . We are advised that New York Life did not bill for any fees and expenses. Defendants argue that the limitation of New York Life’s “fees and expenses” to $2,500, as provided in the above-quoted paragraph of the April 29 commitment letter, extends to any liquidated damage obligation of defendants. Even assuming that liquidated damages could be considered New York Life’s “fees and expenses,” defendants assumed the later obligation to deposit $46,400 with New York Life as liquidated damages. This obligation would cancel the $2,500 limitation, as acknowledged by defendants’ payment of the deposit. The argument is clearly without merit.

5 . Defendants argue that the liquidated damage clause is invalid, but, through Doven-muehle, they have already paid $46,400 to New York Life under that clause. If defendants wish to test the validity of the clause, their remedy is against New York Life. Whatever sums defendants have paid to New York Life cannot lessen any obligations to Dovenmuehle under the other clauses of the April 29 Dovenmuehle letter.

6 . The $57,789.69 consists of the following items: $46,400 for Dovenmuehle’s 1% service fee in obtaining New York Life’s commitments; Dovenmuehle’s travel expenses of $935.11; Dovenmuehle’s outside counsel’s foe of $10,000 and his disbursements of $454.58.

7 . This letter is relied upon in the dissenting opinion, infra, p. 952.

8 . The dissenting opinion upholds the dismissal of the counterclaim on a basis which we do not reach.