Turner v. Baker , 225 Pa. 359 ( 1909 )

Opinion by

Mr. Justice Elkin,

It is contended that appellant was constituted the exclusive agent of appellee to sell his hotel property and that any sale made while the contract of exclusive agency remained in force, either through the effosts of the broker or by the principal, entitles the broker to recover his commission although he was not instrumental in effecting the sale. In some jurisdictions the rule does seem to be laid down as broadly as above stated, but this is not the law in Pennsylvania. It is true in some of our cases, where the parties had executed a contract in which it was expressly covenanted that the broker should be paid a stipulated commission in the event qf a sale within the time specified no matter whether it was effected by the broker, or by the principal, or by any other person, it was held that the commission could be recovered when the sale was made and that it was immaterial who made it. These cases announce no new rule of law. They are simply declaratory of a fundamental maxim which is that parties are bound by the terms of their own contract. If an owner of real estate chooses to make a contract with a broker in which it is stipulated that the broker shall have the exclusive right to sell the property within a specified time and that he shall be entitled receive a certain commission if a sale be made within the (time designated, no matter who makes it, he is bound by its (terms and cannot be relieved from a bad bargain because his agreement may have been foolish or improvident. Our cases have gone thus far and no farther. In the present case the contract contains no such provision, and hence the rule above stated has no application. The appellee did constitute appellant his sole agent to sell a hotel property at a stipulated price and agreed to pay him a commission for his services. He further agreed that the broker should have the exclusive right to dispose of the property and that written notice should be given ten days before the withdrawal of the business. The broker did not make a sale, the principal did. The principal did not give the ten days’ withdrawal notice as required by the contract which the broker insists was still in force when the sale was made, by the principal. The right to recover the commission under these circumstances is asserted on two grounds, first, that a sale made by any person while the contract remained in force entitled the broker to the stipulated commission, and, second, that the commission was earned by the broker producing a purchaser who was ready, able and willing to buy the property. The first position cannot be sustained for the reasons hereinbefore stated. The second contention depends upon the facts. If in point of fact the broker had produced a purchaser ready, able and willing to buy upon the terms of the contract, and while it remained in force, he would clearly be entitled to his commissions under the rule of all the authorities. This is the pinch of the case and it is almost entirely a question 'of fact. The learned court below found as a fact and stated as a conclusion of law that such a purchaser had not been produced by appellant and that his right to recover could not prevail. Unless there is manifest error in this finding of fact the judgment must be affirmed. In this connection it should be borne in mind that this is an action of assumpsit brought in the common pleas and regularly triable before a jury. The parties by agreement waived trial by jury and the case was heard before the court below under the act of 1874. In such cases the findings of the court take the place of the verdict of a jury and come before an appellate court with the same force and effect. The twelfth and twenty-first requests for findings of fact submitted by defendant were affirmed, and while the testimony in some respects may have been contradictory it was the duty of the court to consider all of it, reconcile it if possible, and if this could not be done, then to make such findings as the weight of the evidence warranted. This was done with the result that the court found as a fact that appellant had not secured a purchaser for the property upon the terms stipulated in the contract. The evidence was sufficient to sustain this finding and certainly there is no such manifest error as to justify a reversal. In his declaration the plaintiff averred that the price at which the property was to be sold was $30,000, $15,000 of which was to be paid in cash and the remainder to be secured by a lien upon the. property. The authority to sell did not contain the latter provisions and the burden was on appellant to prove such contract if it existed. The written contract offered in evidence by the plaintiff provides that the property shall be sold for $30,000, which under our cases means a cash payment when no other terms are specified. The plaintiff, therefore, by introducing the written contract in evidence, made out a prima facie case showing his authority to sell the property for $30,000 cash. He did not undertake to show that he had a purchaser ready, able and willing to pay this price in cash for the property, but did introduce testimony showing that there had been considerable correspondence looking to an arrangement whereby $15,000 would be paid in cash and a mortgage given to secure the balance. These negotiations did not ripen'into a contract, nor was anything definitely agreed upon as to terms of payment or sale of the property. The evidence was not sufficient to show that the terms of the written contract were varied in respect to payment, nor that any purchaser had been produced by appellant to purchase upon the terms stipulated in the contract. Under these circumstances, we think the learned court below was fully justified in reaching the conclusion that a case had not been made out and in directing a judgment for defendant.

Judgment affirmed.