Plaintiff real estate agent appeals from a summary judgment dismissing its demand for commission against the owner of property on which plaintiff had a listing agreement and obtained a purchase agreement (from a co-plaintiff who has not appealed) which the principals did not perform.
The purchase agreement for $650,000 was conditioned on borrowing $6,500,000 (sic) with the property as security (and interim construction financing of $6,500,000), and it stipulated that the agent's commission was earned "when the mortgage loan. . . is secured." No mortgage loan was secured.
Plaintiff argues it would have been pointless to secure a loan commitment because the owner's president had verbally
Our view is that the showing that it is undisputed that the loan commitment condition was not met (or waived by the buyer) established that plaintiff is not entitled to a commission.
GULOTTA, J., concurs.
GULOTTA, Judge (concurring).
I concur with the result.
This is a suit for a real estate commission. The buy-and-sell agreement provides as follows:
For whatever reasons, the loan has not been secured by purchaser. The commission has not been earned. Any question of the seller's breach might affect the rights as between the buyer and seller under the contract, but this is not a suit by the purchaser against the seller or the seller against the purchaser. This is a claim by a real estate agent for the commission. Plaintiff's entitlement to the commission, under the contract, becomes effective when the loan is secured. Since the loan was never secured, plaintiff is not entitled to the commission. For these reasons, I concur with the result dismissing by summary judgment the agent's claim for his commission.