(concurring specially).
I concur in the result, and in much but not all of the able and comprehensive opinion of the majority. To me, it seems that the record presents a close question as to whether the case should have been disposed of by summary judgment or by *347a trial on the merits, as to whether the evidence leaves open fair inferences favorable to the appellant, enough to make a genuine issue of fact. See Fox v. Johnson & Wimsatt, 75 U.S.App.D.C. 211, 127 F.2d 729, 736; Paul E. Hawkinson Co. v. Dennis, 5 Cir., 166 F.2d 61, 63; Surkin v. Charteris, 5 Cir., 197 F.2d 77, 79; Loew’s, Inc., v. Bays, 5 Cir., 209 F.2d 610, 615.
I do not understand appellant to argue that the stand-by fee was inherently unconscionable or illegal. My understanding of its contention is that Equitable’s conduct in continuing not merely to accept, but actively to urge, the payment of the stand-by fee after it knew that the deadline could not be met amounted either to a waiver or to an agreement for such extension of time as might be reasonably necessary to complete the hotel.
Nor can I agree that when Equitable offered to grant a written extension, provided the interest rate was increased from 3y2% to 4%, that it did not thereby refuse to extend the time limit under the contract. It seems to me that Equitable was then offering to substitute a different loan agreement for the one to which it was already committed. Obviously, I think, Statler was paying a $15,-000.00 annual stand-by fee for a binding loan commitment, not for the mere privilege of negotiating with Equitable.
Further, I disagree with the position, which I understand the majority to take, that appellant is precluded from any right of recovery because Statler has abandoned any claim it might have had against Equitable. Entering into such a large undertaking, Statler, long before contracting for the erection of the hotel building, took the wise precaution to secure a definite and binding loan commitment. When Equitable refused to enter into a written extension at the agreed interest rate of 3%%, it may not have been good business for Statler to litigate. Instead, it chose to get its loan from another source. That action did not preclude appellant from collecting its commission if Equitable had in fact waived the deadline or consented by its conduct to an extension.
Nor do I think that appellant’s rights were prejudiced by its unsuccessful plea on behalf of Statler that Equitable “consider returning at least one year’s standby fee.” No objection has been made to appellant’s dual representation of both Statler and Equitable. Appellant may well have considered that it owed a duty to Statler, its original client, to urge Equitable to refund at least one year’s stand-by fee amounting to $15,000.00, received by Equitable after it became obvious to all that meeting the deadline was an impossibility.
My concurrence in the result rests upon a much narrower basis. I think that the circumstances under which Equitable urged the continued payment of the stand-by fee expressly negative any inference otherwise permissible of a waiver of the deadline or of a binding agreement to an extension of time of the definite loan commitment. Those circumstances are best evidenced by the letter written by Chambers at the time with reference to the stand-by fee due July 1, 1953:
“June 29, 1953
“Mr. Arthur F. Douglas, President,
“Hotels Statler Company, Inc., “Hotel Statler,
“New York, N.Y.
“Re: Dallas Statler Hotel Loan, Dallas, Texas.
“Dear Arthur:
“We talked to Eddie Maher in Dallas and he in turn called the New York Office and called us back.
“He now understands your circumstances and asked us to tell you that everybody concerned wants to work out the loan and Mr. Maher feels sure it will be done. He did suggest that you work as fast as possible and that the standby fee due July 1st be paid.
“With best wishes,
“Sincerely yours,
“J. J. Chambers.
“JJC:mcb”
*348The message which Equitable asked appellant to convey to Statler was not that the deadline had been waived or an extension agreed on, but simply that, “ * * everybody concerned wants to work out the loan and Mr. Maher feels sure it will be done.” This was, I think, express notice that no definite understanding had been reached but that one would have to be “worked out.” Under such circumstances, I think that Equitable was justified in re-entering the negotiation stage and offering to grant the written extension at an increased interest rate. For that reason, no fair inference remained open that by its conduct Equitable had waived the deadline or had consented to an extension of time. I, therefore, concur specially.