The opinion of the court was delivered by: DUFFY
The plaintiff, Sonnenblick-Goldman Corp., and the defendant, Marbella Del Caribe, Inc., entered two contracts dated November 8, 1971, under the terms of which the plaintiff became the exclusive agent of defendant for the purpose of securing construction and long term mortgages for the defendant's condominium project in Puerto Rico.
The plaintiff has sued to recover commissions which it alleges are owing. The defendant has counterclaimed on several grounds as set forth below. The facts, which were developed at a trial before me, sitting without a jury, are set out below. This opinion will constitute findings of fact and conclusions of law as required by Rule 52, Fed.R.Civ.P.
The November 8, 1971 contracts provided that plaintiff would be the exclusive mortgage broker for defendant for a period of 30 days plus 15 additional days if necessary and thereafter until the authorization was cancelled by defendant. The plaintiff was to procure a permanent mortgage commitment in the amount of $16,000,000 and first mortgage construction loans also in the amount of $16,000,000. The broker's commission was to be 1 per cent of the permanent commitment and 1.5 per cent of the construction loan.
The Pre-Trial Order, signed by the attorneys for both parties and "SO ORDERED" by me, states that the commissions were "to be deemed earned upon Marbella's receipt of a loan commitment upon terms acceptable to Marbella," (Pre-Trial Order Statement of Undisputed Facts, para. 7(d), para. 8(c)).
In both contracts the defendant agreed to accept loans as described therein and to pay the full commission in the event of a failure to accept such loan or commitment. However, both contracts provided that acceptance of commitments secured thereunder would be contingent upon the plaintiff's securing both the permanent and the construction loan commitments.
A good faith deposit of $80,000 was provided for by the "construction loan" contract. That amount was to be credited against commissions due, if in fact the commitment were secured, but was to be refunded to defendant after 30 to 45 days if no loan commitment was delivered.
Both contracts further provided that they could be altered only by written agreement.
On November 9, 1971, the defendant deposited $80,000 with Sonnenblick as per the construction loan contract.
On or about March 28, 1972, Marbella accepted a commitment for permanent financing issued by the Bayamon Federal Savings and Loan Association of Puerto Rico ("Bayamon") and the West Side Federal Savings and Loan Association of New York City ("West Side") in the amount of $9,016,400 for Tower I of the condominium project and $8,996,000 for Tower II.
This offer required a commitment fee by the defendant of $450,310 of which $150,000 was to be paid by May 15, 1972, the balance to be paid on the closing of the construction loan. At the time that the commitment was accepted, the defendant agreed in writing to pay a non-refundable $25,000 of the commitment fee to Bayamon. To this end, the defendant gave plaintiff written authorization to disburse to Bayamon $25,000 out of the $80,000 "good faith deposit." The disbursement was made.
A letter dated March 28, 1972 and signed by Marbella reaffirmed Sonneblick's exclusive authorization to procure financing for Marbella and provided that the permanent commitment would be held by Sonnenblick in escrow until the entire commitment fee was paid at which time the commitment would be released to defendant and would then be in full force and effect.
Another letter of the same date reaffirmed the fact that Sonnenblick had "secured a permanent mortgage commitment" and that Marbella had accepted it.
There was testimony that after March 28, 1972, Sidney Troy, the national mortgage director of plaintiff, made some unsuccessful efforts to procure construction financing for the defendant's project.
On April 25, 1972, Marbella sent plaintiff a telegram informing Sonnenblick that Marbella was cancelling the authorization to obtain financing for the condominium project and requesting the return of the $55,000 ...