Folsom v. Slattery , 54 Pa. Super. 350 ( 1913 )

Opinion by

Morrison-, J.,

This is an action of assumpsit brought by the plaintiff to recover the sum of $250, alleged to have been agreed upon between the plaintiff and defendant as compensation to the plaintiff for securing for the defendant a lot of land alleged to be owned by A. K. Stoughton, located on North avenue, Emsworth borough, Pennsylvania. The plaintiff alleged that he had authority from Mr. Stoughton to secure a purchaser for said lot for the price of $4,400 and that he negotiated with the defendant and the latter agreed with the plaintiff that if he could secure the property to be sold to Mr. Slattery for $4,150, that the latter would pay to the plaintiff the difference between $4,400 and $4,150 or $250, as plaintiff’s compensation for making the sale, and there was evidence from which the jury could find that Mr. Slattery agreed to this proposition, but, as he alleged, upon the condition that the title to the property was to be good and marketable and passed by his attorney.

On March 30, 1906, the defendant met the plaintiff and together with A. K. Stoughton, the alleged owner of the property, they went to the office of Mr. Slattery’s attorney, where, at the instance of the plaintiff, Mr. Stoughton and Mr. Slattery entered into the following written agreement:

“Pittsburg, Pa., March, 30,1906.

“ Received of Michael J. Slattery $50, part payment of the purchase price of those two certain lots of ground in the Borough of Emsworth, Allegheny county, Pennsylvania, being lots Nos. 8 and 9, in Adair and Diffenbacher’s plan, recorded in Plan Book, Yol. 4, page 263, and having a front of 100 feet on North Avenue, and extending back therefrom 150 feet more or less to Apple Alley, which said real estate is this day sold to the said Michael1 J. Slattery for the sum of $4,150, balance of $4,100 to be paid as follows:

“Purchaser to assume and pay a mortgage of $2,000, now on the premises, as part of the purchase price, remaining two thousand and one hundred dollars cash on delivery of good and sufficient general warranty deed on or before April 10, 1906. Title to be good and free from liens and encumbrances or hand money refunded on demand. Purchaser to Day all taxes 1906.

Witnesses:

“ Edith Garwood A. K. Stoughton ”

“H. F. McGrady Michael J. Slattery ’ ’

If A. K. Stoughton had title to the lots in question it cannot be doubted that the above was a valid contract for the sale of the same to Michael J. Slattery, nor can it be doubted that the latter agreed to purchase the property for the price named therein. But subsequently Mr. Slattery refused to take and pay for the property notwithstanding the fact that on April 10,1906, a good and sufficient warranty deed was tendered by Mr. Stoughton to Mr. Slattery who refused to accept the deed and pay the purchase price, alleging that one Irons had, since the execution of the agreement between Stoughton and Slattery, informed the latter that John B. Hays had made an agreement in writing on February 23, 1906, with Mr. Irons to sell him the property.

It appears in evidence, and is not contradicted, that John B. Hays conveyed his title to the property in question, on December 27, 1904, to William D. Hays; that the agreement made by John B. Hays to sell the property to James H. Irons was made on February 23, 1906, more than a year after John B. Hays had conveyed his title to William D. Hays. Now so far as we can see from the evidence, John B. Hays was a mere intermeddler in making the contract of February 23, 1906, to sell the property to James H. Irons, and the evidence does not disclose that said contract had any legal effect whatever upon the title which William D. Hays conveyed on March 28, 1906, to A. K. Stoughton. This deed was recorded April 10, 1906, in the recorder’s office of Allegheny county in Deed Book, Yol. 1439, page 518. It will be noted that it was on March 30, 1906, that the agreement of sale and purchase of the property between A. K. Stoughton and M. J. Slattery was executed and delivered.

Appellant’s learned counsel contend that because Mr. Irons notified the appellant that he had a contract for the sale and purchase of the property in question from John B. Hays of a date prior to the contract between Stoughton and Slattery, that, therefore, Stoughton’s title tendered to appellant was not good and marketable. But we fail to see much force in this contention, because it was shown in evidence that Mr. Stoughton had purchased the property for value without notice of any defect in the title, after an examination by this attorney, from William D. Hays to whom John B. Hays had conveyed the same on December 27, 1904. Mr. Irons’ contract with John B. Hays was not of record and it does not appear that either the plaintiff or Mr. Stoughton had any knowledge of any agreement between John B. Hays and Mr. Irons for the purchase and sale of this property at the time the agreement was entered into between Stoughton and Slattery. Moreover, slight investigation and inquiry would undoubtedly have informed Mr. Slattery’s attorney that John B. Hays had parted with his title more than a year before he made the contract with Mr. Irons, and that the title that John B. Hays formerly owned was fully vested in Mr. Stoughton before he made the contract of March 30, 1906, to sell the property to the appellant. Upon this state of facts the plaintiff alleged that he had procured a valid contract for the sale of the property to the appellant; that the latter had accepted the contract and had paid part of the purchase money and that he had it entirely within his power to purchase the property and pay for it and that his refusal to do so, on the facts in evidence, did not relieve him from paying the plaintiff the $250, which appellant had agreed to pay if the plaintiff would secure the property to be sold to him.

We find in the record nine assignments of error, but as we understand the facts found by the jury which control this case the assignments do not raise reversible error. The learned court, in charging the jury, used the following language: “It seems to me, gentlemen, that this case comes down to the question of whether or not it was understood between Mr. Slattery and Mr. Folsom that the $250, was not to be paid by Slattery to Folsom unless the purchase was finally carried out, and he received a good, general warranty deed for the property, and I believe Mr. Slattery says that was the understanding, that it was so understood. Whether it was understood with Mr. Folsom or not, I don’t recall from the testimony, but you gentlemen will have to determine that question.

“Then, as I said, Mr. Folsom in this case can recover if there was no understanding of that kind that he was to pay, but the understanding was that Mr. Slattery was to pay to Folsom, if he succeeded in getting Stoughton to enter into the contract with him to convey to him the property for $4,400. You have heard the testimony in this case of these different witnesses, and, if you find the plaintiff is entitled to recover, your verdict should be in favor of the plaintiff for $250, with interest from April 10, 1906. If you find that he is not entitled to recover, your verdict ought to be for the defendant.

“The plaintiff must satisfy you of his right to recover, by the weight of the evidence, which is the value of the testimony of the different witnesses. If after considering all of the testimony, the weight or value of it is in favor of the plaintiff, he is entitled to a verdict.”

The bargain between the plaintiff and the defendant was oral and the testimony was somewhat in conflict and it was certainly for the jury to determine what the contract really was between the plaintiff and the defendant. The jury evidently found that all the plaintiff undertook to do was to procure a valid contract for the purchase of the property in question by his employer, the appellant. We do not understand it to be seriously contended that in fact there was any question about the title which A. K. Stoughton agreed by the writing of March 30, 1906, to sell and convey to the appellant and, therefore, we are of the opinion, the jury having found that the plaintiff complied with his agreement with the appellant, he was entitled to recover the $250, with interest. It is evident that the jury found that the agreement between Mr. Folsom and Mr. Slattery was not that the $250 was to be paid if the purchase was finally carried out and Mr. Slattery received a good general warranty deed for the property, but that Mr. Slattery was to pay Mr. Folsom if the latter succeeded in getting Mr. Stoughton to enter into the contract with Mr. Slattery to convey him the property for $4,400. Upon such finding the plaintiff was then entitled to his compensation upon the execution and delivery of the agreement between Mr. Slattery and Mr. Stoughton: Hippie v. Laird, 189 Pa. 472; Irons v. Snyder, 49 Pa. Superior Ct. 522. The failure to consummate the sale was not the fault of the plaintiff. He had performed his contract, as evidently found by the jury, and had a right to recover: Sweeney v. Oil & Gas Co., 130 Pa. 193.

The assignments of error are all dismissed and the judgment is affirmed.