MacArthur Park Corp. v. Sunshine

589 S.W.2d 538, 1979 Tex. App. LEXIS 4298
CourtCourt of Appeals of Texas
DecidedOctober 26, 1979
DocketNo. 9026
StatusPublished
Cited by1 cases

This text of 589 S.W.2d 538 (MacArthur Park Corp. v. Sunshine) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacArthur Park Corp. v. Sunshine, 589 S.W.2d 538, 1979 Tex. App. LEXIS 4298 (Tex. Ct. App. 1979).

Opinion

DODSON, Justice.

Howard A. Sunshine, individually and d/b/a Sunshine Exploration Company, a [540]*540mortgage broker, brought this action to recover certain brokerage fees and attorney’s fees under a written agreement with MacArthur Park Corporation. The bench trial resulted in a judgment in favor of Sunshine for the sum of $21,900 plus post judgment interest. MacArthur appeals from this judgment. We modify the judgment and as modified, affirm.

MacArthur is the owner of a medical-dental complex in Irving, Texas. The complex is designed for specialty space rentals to doctors and dentists. The building phase of the project began several months before MacArthur engaged Sunshine to find permanent financing for the complex.

On 11 July 1974, the parties entered into a mortgage brokerage agreement. In this agreement, MacArthur designated Sunshine its exclusive agent and representative for the purpose of procuring a loan commitment for permanent financing on the complex. A pertinent part of the agreement provides:

It is expressly agreed and understood that the sole obligation of Sunshine Exploration Company under this Agreement is to seek to find a LENDER ready, willing and able to consider making a LOAN COMMITMENT to the BORROWER consistent with the provisions of this Agreement, and at such time the BORROWER shall execute a formal application to said LENDER(s), providing whatever information the LENDER(s) requests, and that the entire cash fee hereinafter agreed to will become due and payable to Sunshine Exploration Company upon its furnishing the undersigned with a writing from such a LENDER evidencing its willingness to make said LOAN COMMITMENT. (Emphasis added).

Sunshine maintains that he performed his obligation under the agreement by seeking to find and presenting to MacArthur at least two lenders which were “ready, willing and able to consider making a loan commitment to the borrowers.” (Emphasis added). MacArthur says Sunshine is not entitled to recover because he failed to comply with an alleged condition precedent in the agreement requiring him to furnish “a writing from such a lender evidencing its willingness to make said loan commitment.” Sunshine counters that the provision relied on by MacArthur is not a condition precedent to liability under the agreement but assuming arguendo that the provision is a condition precedent, then nonperformance in this regard is excused because MacArthur failed to promptly apply for and pursue the loans.

The evidence shows that Sunshine prepared a loan package from information furnished by MacArthur and contacted several lenders concerning permanent financing for the project. Sunshine testified that from these contacts he found lenders which were willing to consider making a loan to the appellants. He presented the loan quotations from these lenders to the president and owners of MacArthur at a meeting on 10 August 1974. The details of the quotations from the lenders were set forth in a letter dated 9 August 1974, which was delivered to MacArthur at the August 10 meeting.

One of the lenders was identified as Lincoln Liberty Life Insurance Company. Sunshine testified that on 13 August 1974 George Pelletier, the president of MacArthur, told him to go ahead with Lincoln Liberty Life. A formal loan application executed by MacArthur was necessary, however, to pursue the Lincoln Liberty Life loan.

Sunshine further testified that the mortgage loan market was volatile and subject to change on a daily basis. His testimony also shows that during the period from 16 August 1974 to 4 September 1974, he had nine telephone conversations with Mr. Pel-letier personally, 30 conversations with his office and one meeting with Mr. Pelletier. He said the purpose of these conversations was “to get them off dead center so they would execute a formal application on a firm quotation received by Lincoln Liberty Life.” MacArthur made formal application for the Lincoln Liberty Life loan by a letter dated 17 September 1974, but Lincoln Liberty Life did not grant the loan commitment on the project.

[541]*541In general, a mortgage broker is deemed to have performed his contract and is entitled to compensation when he has produced a lender who is ready, willing and able to lend on the terms sought by the broker’s principal. See 12 Am.Jur.2d Brokers § 183 (1964) and the cases cited under note 8. In the contract before us, the parties specifically agreed “that the sole obligation of Sunshine Exploration Company under this Agreement is to seek to find a LENDER ready, willing and able to consider making a LOAN COMMITMENT to the BORROWER.” (Emphasis added). Thus, under this provision of the agreement, Sunshine is only obligated to seek and present a lender ready, willing and able to consider making a loan commitment to MacArthur.

The trial court filed findings of fact and conclusions of law. Four of the unchallenged findings of fact relate to Sunshine’s action for permanent financing under the agreement. Rule 299 of the Texas Rules of Civil Procedure provides, in part that “where one or more elements thereof [Sunshine’s grounds of recovery] have been found by the trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment.” Therefore, from our review of the record, we conclude that the evidence supports an omitted finding that Sunshine sought, found and presented to MacArthur a lender ready, willing and able to consider making a loan commitment for permanent financing on the project.

We do not agree that MacArthur’s liability under the agreement is conditioned on Sunshine’s furnishing a written loan commitment from a willing lender. The provision relied on by MacArthur states “that the entire cash fee hereinafter agreed to will become due and payable to Sunshine Exploration Company upon its furnishing the undersigned [MacArthur] with a writing from such a LENDER evidencing its willingness to make said LOAN COMMITMENT.” This sentence is preceded by the definitive description of Sunshine’s sole obligation under the agreement, which is discussed above. The questioned provision sets forth the time of payment based on presumptions that MacArthur shall promptly execute a formal application to the lenders with all requested information and that the application will be approved by the lender. The provision, however, does not condition payment of a fee on the presentation of a written loan commitment. We note the absence of words and phrases such as “provided that”, “on condition”, “in the event of” and other similar language importing a conditional provision.

Assuming arguendo that a written loan commitment is a condition precedent to payment, then MacArthur’s failure to promptly file a formal application excused the alleged nonperformance by Sunshine. In Dockery v. Durham, 3 S.W.2d 514, 515 (Tex.Civ.App.—Waco 1927, writ dism’d) the broker sued for a commission on a non-consummated loan. The borrower had refused to submit to the lender an abstract of title on the subject property. The court stated the following general principle: “One party to a contract will not be permitted to take advantage of his own wrongful failure to perform his part, thereby rendering performance by the other party impossible, and then escape liability.” Id. at 519.

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Bluebook (online)
589 S.W.2d 538, 1979 Tex. App. LEXIS 4298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macarthur-park-corp-v-sunshine-texapp-1979.