Schamberg v. Kahn , 279 Pa. 477 ( 1924 )

Opinion by

Mr. Justice Frazer,

Plaintiff sued to recover compensation for services in procuring a purchaser for real estate belonging to defendant. The sole question in dispute between the parties is whether plaintiff secured a person ready, able and willing to buy defendant’s property on the terms authorized by him. There was no written agreement and the case depended mainly on the testimony of the principals to the controversy, whose versions of their contract were quite contradictory. The trial judge submitted the case to the jury and a verdict was returned for plaintiff. A motion for judgment for defendant non obstante veredicto was subsequently dismissed and defendant appealed.

Plaintiff, a real estate broker, called upon defendant, the owner of the premises situated on the southwest corner of Twentieth and Arch streets, Philadelphia, to learn if the latter desired to dispose of the property. According to plaintiff’s testimony defendant stated he would sell for $600,000 cash, subject to existing mortgages, but that if other property should be taken in trade he would expect to receive a higher price. It was agreed that in event of a sale or trade the broker should receive $25,000 for his services. Plaintiff called on William G. Moore, a prospective purchaser, and procured an offer from him of $625,000; $35,000 to be paid by assignment of a mortgage on other property; $90,000 by equities in other premises and the balance by two mortgages on the property, aggregating the sum of $500,000. This offer was submitted to defendant who expressed himself satisfied with the terms and instructed plaintiff to prepare an agreement which was done and handed to defendant, who approved it, stating, however, he would sign after its execution by the purchaser. Plaintiff returned to the purchaser who, in. signing, noted on the margin a' memorandum to the effect that his signature was conditional upon all leases from tenants of the premises being exhibited to him and the structural plans of the building receiving the approval of his architect. Plaintiff called defendant on the telephone and advised him of this stipulation, whereupon defendant stated the purchaser’s terms were satisfactory. The leases were duly exhibited and, the purchaser’s architect having examined and approved the building, the contract was again presented to defendant for signature. He agreed to return it in a day or two but.failed to do so and plaintiff, upon calling on him in reference to the sale, was put off from time to time and later informed by defendant that, as soon as matters connected with the title to the property, which had not been previously referred to, had been cleared up, he would sign the agreement. Defendant finally refused to proceed further in the transaction. While plaintiff’s testimony was denied by defendant, who contended his proposition was a sale for cash only, plaintiff’s contention was corroborated to some extent by the proposed purchaser and also by other circumstances connected with the transaction.

Under the foregoing testimony the case was clearly for the jury and the evidence ample to warrant the finding that plaintiff had fully performed his part by procuring a purchaser ready and willing to contract on terms acceptable to defendant. Under these circumstances it is immaterial that defendant finally refused to sign the contract. The law governing the legal rights of the parties was correctly stated by the trial judge in affirming plaintiff’s fifth point for charge to the effect that if plaintiff procured a purchaser on terms accepted by defendant and prepared a contract of sale, which was approved by defendant and signed by the purchaser who was ready and able to perform the contract, he was entitled to recover, even though defendant subsequently refused to sign the agreement and comply with its terms: Aber v. Penna. Co., etc., 269 Pa. 384, 387; Thompson v. Goldman, 41 Pa. Superior Ct. 209.

The judgment is affirmed.