41 Pa. Super. 442 | Pa. Super. Ct. | 1909
Opinion by
This is an action in assumpsit brought by plaintiffs to recover commissions as brokers. The declaration alleged that the defendant employed plaintiffs to rent No. 1306 Chestnut
The question in this case is, could the court below, on the declaration and the affidavit and supplemental affidavit of defense legally grant judgment against the defendant thereby depriving him of a jury trial?
In the opinion filed, the learned court below appears to have assumed that the contract between the plaintiffs and the defendant was contained in the letters of June 30, 1908, and July 1,1908, copies of which letters are embraced in the plaintiff’s declaration. An examination of the affidavits of defense leads us to the conclusion that the court was not warranted in this assumption. Let us see what the contract was as averred in the affidavits of defense. Upon this question the appellants’ counsel have very fairly summarized the averments contained in their affidavits of defense as follows, to wit:
“That the defendant was the-owner of two properties, No.’s 1306 and 1310-Chestnut Street; that he had been negotiating a contract with the Crane Ice Cream Company prior to employing plaintiffs; that he first tried to rent 1308 and then 1310 Chestnut-street to the Crane Company and that he asked the plaintiffs to try to interest the manager of the Crane Company in 1310 Chestnut street and that they thereupon wrote the letter contained in the statement which did not contain the whole agreement and was not the real agreement; that it was clearly agreed that their employment was not exclusive and that their commission was only to be due if they secured a
The learned court holding that the affidavits averting, in substance, the above showed no defense, made absolute a rule for judgment. The averments of fact in the affidavits so far as they are relevant and material, must, for present purposes, be accepted as verity: Brooks v. Keller, 173 Pa. 615.
Now assuming as averred that the plaintiffs’ employment was not exclusive and that the undertaking of the plaintiffs was the actual procuring of the signature to a lease and the making of a down payment, the court was not warranted in holding that the contract of employment between the plaintiffs and the defendant was to bring together the defendant and another who might subsequently enter into a bargain. In the opinion the court says: “It was not the plaintiffs’ duty or their contract to prepare a lease or to be present at its execution. All they had to do was to bring the landlord and the tenant together, and as, when they were brought together, they agreed, there can be no logical reference of the act of agreement to an undescribed and perhaps indescribable influence of the alleged second agent in the case.” This seems to be a misunderstanding, by the court, of the contract as averred in the affidavits of defense. It entirely ignores the fact that the defendant had been negotiating with the Crane Ice Cream Company prior to his employing the plaintiffs and it further ignores the fact that the contract was not to bring the parties together, but it was for the execution of a lease and the securing of a down payment thereon. It cannot be contended that the plaintiffs brought the landlord and tenant together, nor that they secured the execution of a lease or a down payment. The court evidently considered the contract
It is further averred in the affidavits of defense that the negotiations between the plaintiffs and the ice cream company had fully and finally ended in failure. That the plaintiffs then began to offer the property to other persons for rent, and it is also averred that at no time did the plaintiffs have the exclusive right to rent the property. It is also averred that the lease between the defendant and the ice cream company was finally negotiated and consummated by Deakyne who received his commission therefor from the defendant.
In this opinion we assume that the same principles of law which govern the claims of brokers for commissions on sales of real estate will apply to claims for leasing or renting real estate. The law is well settled that if a broker negotiates with an intending purchaser and brings him into contact with the vendor, then after the purchaser has concluded not to buy, the broker has no right to commission. This proposition is
“Where a contract provided for payment for services in procuring a purchaser for real estate or effecting a sale, such services are not rendered by submitting a proposition' from a party with whom the owners had been negotiating:” Syllabus of Hartley v. Anderson, 150 Pa. 391.
In Black v. Snook, 204 Pa. 119, the defendant admitted substantially the agreement as claimed by the plaintiff but averred, contrary to the contention of the plaintiff, that the latter had not the exclusive right to dispose of the property, and that the defendant sold it. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained. In that ease the Supreme Court said: “The question at issue, therefore, was one of fact, and having been properly submitted to the jury, the judgment is affirmed.”
In the present case the questions of whether the plaintiffs’ contract was to procure the signing of a lease and the making of a down payment and whether they actually accomplished this or it was done by another after their undertaking with the defendant had ended, must, under the averments of the affidavits of defense, be submitted to a jury: Masterson v. Mas
The assignments of error are sustained and the judgment is, therefore, reversed, with a procedendo.