The Miller court went on to say that the test is not whether the person ought to be satisfied but whether he is satisfied, there being, however, this limitation that any dissatisfaction must be genuine and not prompted by caprice or bad faith. Miller v. Corson, at p. 863.
Based on an examination of the relevant circumstances surrounding the transaction at hand, we conclude, like Miller, that absent a showing of an agreement to the contrary or a showing of bad faith on the part of the Borrower, the Borrower's promise to pay Feinberg was conditional upon Borrower's satisfaction with the terms of the note purchase agreement.
Not only is there a lack of evidence of an agreement to the contrary, but there are indications that Feinberg understood that the obligation to pay would and could not come about until after the loan had been actually consummated. By letter of October 11, 1967, Borrower promised to pay Broker "at settlement" $68,373.54, which amount represented both Broker's three percent (3%) commission of the face amount of the loan ($10,500) and Feinberg's two percent (2%) commission over the life of the loan reduced to present worth ($57,873.54). On that same day, Broker wrote to Feinberg informing him that, "upon receipt" of these funds from Borrower, Broker would pay Feinberg his share. The reference to payment coming about "at settlement" contemplates that there would be a settlement, therefore, quite obviously, a consummated loan.
The initial suggestion by Feinberg with regard to commission was that he be paid over the life of the loan. This clearly indicates an understanding that he would be paid out, as the Lender was being paid out, over the fifteen-year term. This, too, quite obviously, indicates an acceptance and understanding by Feinberg that a loan would have to be consummated before an obligation to pay him was imposed upon the Borrower.
Finally, the basis for the Borrower not going through with the loan transaction was clearly justified and, hence, can only be termed as having been done in good faith. Over the nine-month span between the time Borrower originally intended to obtain the loan and the drafting and discussion of the final note purchase agreement, Borrower's financial condition declined and a merger with another company was contemplated. Under the note purchase agreement drafted by Lender's counsel, such a merger, where Borrower was not the surviving company, would put Borrower in default. Also, a proposed notice under the agreement to Borrower's long-term creditors revealing the fee arrangement would have been, in Borrower's mind, damaging to its credit standing. On these grounds, Borrower refused to sign the note purchase agreement. The Court finds that neither of these grounds for refusing to sign the agreement was capricious or in bad faith.
By reason of the foregoing, it is clear that the plaintiff cannot prevail in this action and the Court will enter its Order accordingly.