*1 appears party provides when D.C.R. 30 pleading acknowledge person proper and fails give to the recognize any effect or the court shall original complaint. given pleading. effect was No presented application to the situations Rule 30 has no v. Bell. case or Cheek either this Petition dismissed. PRI JACKSON, JR., v. THE J.

FRANK Appellant, INC., HOTEL, Corpora MADONNA Respondent. tion,

October Mortimer, Hill, Wayne L. Goldwater, Taber Reno, Appellant. Respondent. Carano, of Bible, McDonald *2 OPINION

By Court, Thompson, J.: against

Jackson commenced suit Primadonna Inc. to a $21,000 recover commission of claimed to be procuring Virgil due for from one Smith an “oral com- $400,000 mitment for a loan” of to Primadonna. The loan was not made. Jackson lost in trial and appeals. affirm.

By 2, 1961, Primm, a agent letter dated Hotel, Inc., gave Jackson the exclusive period days for a of 30 to obtain a “commitment Hotel, Inc., a loan corpo- for for Primadonna ration, $400,000.” in the sum of The loan was to be for period years, repayable monthly installments, of 5 percent per with interest at 10 annum. Primadonna was prepay to have the the loan with a reasonable prepayment penalty. The loan was to be secured Virginia Street, first deed of trust on the 241 North assignment Reno, Nevada, property, by an of the lease contiguous property known as 237-239 North Vir- ginia Street, assignment an of the leasehold improvements immediately interest and to the west a restaurant After where constructed. receiv- ing authority, attempted letter of secure money, commitment of eastern trust fund a loan airplane trip from failed. On an San Francisco to Biltz, during a conversation casual with Norman Jack- his endeavor to obtain a loan for Prima- son mentioned might donna. Biltz indicated that he or his associates Later, making upon interested in the loan. be Biltz, copy request Biltz a Jackson furnished it, 2, 1961, receiving After Biltz and his letter. agreed among Smith, Wedge loosely and Dant associates making participate in the loan desired themselves to Primadonna, and was authorized so to advise Smith Wedge 29, 1961, Primm. On or about Primm Smith advised went to Primm’s home where he, Smith, make the loan on the terms out- would percent prepay- A 5 lined in the letter of acceptable. penalty ment discussed and considered hands, departed and Primm shook understanding attorneys prepare their Wedge, required documents to close the deal. Thereafter Smith, prepared for attorneys The docu- delivered to the Primm. signature provisions contained ments submitted substantially different from those contained which were *3 2, only in the letter of 1961. mention two We papers required repayment proposed them. The final installments, monthly in annual rather than the loan contemplated years repayment full in four instead accepted proposed papers The final of five.1 by Primadonna. trial,

It contention at and in was Jackson’s this that his to a commission matured the moment according told Primm that a loan be made requirements 2,May At of the letter of 1961. procured had a commitment for a loan instant he and, Simp Rupe Son, authority of lot v. on the Co. & 78 111, 445, P.2d had earned Nev. his commission. On hand, the Primm relies our in other Estate, Inc., 284, Bond P.2d v. 212. meeting 29, He that his with Smith on contends step negotia merely the initial in series of meetings) (we not the tions have detailed various papers the lender submitted final which ended when substantially that contained terms different than those to there was some evidence indicate tliat this variance may drafting, been a trial court have mistake the was free to value, accept apparently at the documents face did so. According to in the letter of outlined by made Primm, only “commitment” the papers by which Smith’s the evidenced the papers meet the terms of prepared. those As pre- supra, letter, these due. turn to resolve cludes a commission contentions. Simplot, supra, participating

In lenders were ready, a final loan to consummate able agreement according so, do to their commitments to That holds refused to consummate. case borrower liability may for a broker’s borrower avoid refusing loan by unilaterally to commission (the he bor- which was committed terms which requested. present rower) The case is different. had though committing Smith, orally him- Here the lender by requested loan on terms bor- self make the rower, repudiated commitment that oral later demanding not recover terms.2 A broker different agrees orally compensation producing a who lender repudi- comply the offer and the terms of complete proposed commitment and fails to ates his Goodman, Higgins Ginsburg 278 Mass. loan. Simplot 233; Annot., In 12 A.L.R.2d 1410.

180 N.E. loan; here, borrower frustrated consummation This, governs the broker’s did. difference leader compensation. Finally, closing if the submitted the lender Smith to the

Inc., may be treated as a “commitment to make a loan” (a point on the terms therein stated on which we Inc., express Estate, opinion), no v. Bond Widett supra, precludes liability for a commission. it is true that some of the evidence indicates loan, is also refused to there consummate support finding the lender Smith substantial repudiated evidence purposes Por his oral commitment to make the loan. judg supports of this we the evidence ment.

simply pay a holds that the borrower is not liable to broker’s commission when the commitment secured does designated by all not meet the terms the borrower. Here parties concede that 2,1961, setting

substantially comply with the letter forth the terms on which the borrower was perceive legal Accordingly deal. we no basis on. which recover in this case. Affirmed.

McNamee, J., concurs. J., concurring:

Badt, C. concur, I prefer but should to base our affirmance ground met, parties that the never minds of the agreement not meet until their reduced had been writing. and cases therein cited. This was accomplished.

VALLEY POWER COMPANY TOWNSITE COMPANY, Appellants, DEVELOPMENT

TOIYABE SUPPLY and NEVADA BANK CO. Respondents. COMMERCE, OF November 396 P.2d 137