Barrett v. King , 64 Pa. Super. 601 ( 1916 )

Opinion by

Williams, J.,

The plaintiffs brought suit to recover a commission for the sale of real _ estate. A written contract was made, signed by “Edw. S. King, Adm. Est. Addison King.” The signer and his brother, Walter King (who had authorized Edward to act for him), were the owners of the property, subject to their mother’s dower and a mortgage which had been placed upon this and other property by the administrator under, authority of the Orphans’ Court. The agreement of agency, inter alia, provides for the payment to the plaintiffs, as a commission, of such sum as they may be able to secure over and above $3,300, which was fixed as the selling price. A purchasér was procured at $3,500. An agreement of sale was prepared but the defendants refused to sign, alleging that the purchaser was not satisfactory and that this was a condition of the employment of the agents, although not in the written contract of agency, .and also' that the title was encumbered with the mother’s dower and the mortgage referred to above. The reason given that the proposed purchaser was not satisfactory was its lack of financial ability, it being an unincorporated association, and1 that it sold liquor illegally.

The disputed questions of fact were left .to 'the jury, which rendered a verdict for the plaintiff for $200.

The assignments of error raise three questions: (1) The contract being signed by Edward S. King as administrator of his father’s estate, was he personally liable on the contract with his brother, who was proved by oral evidence to have made E. S. King his agent in the transaction? (2) Was the purchaser offered a proper one and capable of taking title? (3) Did the fact that the premises were encumbered relieve the defendants from liability to pay for the loss of commission?

The greater part of the appellant’s argument is devoted to showing that a written contract cannot be varied by parol in the absence of an averment of fraud, accident or mistake. There is nothing in the case to warrant the application of the rule. One of the defendants signed the contract as administrator and it is conceded that this did not bind the estate. His signature, however, binds him in his individual capacity: Seip v. Drach, 14 Pa. 352; Frick v. Shimer, 26 Pa. Superior Ct. 563; Keller’s App., 181 Pa. 600, and also his brother and co-heir, if the latter has assented to the contract: Fehlinger v. Wood, 134 Pa. 517, and see Gumaer v. Barber, 182 Pa. 31.

The purchaser offered was capable of taking title. An unincorporated association'may lawfully hold title to either real or personal property: Phipps v. Jones, 20 Pa. 260; Liederkranz Singing Soc. v. Germania Turn-Verein, 163 Pa. 265. The purchaser might have been personally distasteful to the defendants, yet if in law financially responsible (which was shown by the evidence), the defendants could not refuse to'convey and thus escape liability for the commission. The question of whether the purchaser was to be satisfactory to the defendants was left to the jury and their verdict is conclusive of the fact that the agreement did not contain such stipulation, it was, therefore, immaterial whether the purchaser might be prosecuted for a violation of the liquor laws.

The fact that the property was encumbered was no defense to this action. A real estate broker has earned his commission when he introduces to his principal a responsible purchaser ready to pay the price named by the seller: Clendenon v. Pancoast, 75 Pa. 213. An agent does not lose his right to commission because the owner is unable to procure a release or discharge of encumbrances, unless the contract of agency so stipulates: Fenn v. Dickey, 178 Pa. 258.

The evidence admitted was competent. The defendant, Walter King, having testified that he had authorized his brother to act for him, the error, if any, was harmless.

The technicalities as to the refinements of conveyancing might be applicable if this was an action for specific performance, but it is not. It is an action to recover a commission and if the plaintiffs performed their part of the contract it matters not what were the reasons for refusing to complete the sale other than the responsibility of the proposed purchaser.

The assignments of error are overruled and the judgment affirmed.