Black v. Pentony

30 Pa. Super. 38 | Pa. Super. Ct. | 1906

Opinion by

Orlady, J.,

The plaintiff is a salesman for a firm of wholesale liquor dealers, and was promised by the defendants, who are licensed retail liquor dealers, that they would pay him #1,000 if he would procure a purchaser of their license and business at the sum of $25,000. The plaintiff produced John J. Kernan, who expressed a willingness to pay the price exacted, when a controversy arose as to the terms and manner of payment; the defendants then notified the plaintiff and Kernan that the sale or deal was off, and refused to consider the proposition any further. This suit was brought to recover the commission with interest, as averred in the statement, “ for the services rendered in procuring a purchaser prepared to pay $25,000 in cash for said license and business, as soon as the transfer of the license would be allowed by the license court.” It is conceded that this executory contract was conditioned upon the approval by the license court of an application to be made by the defendants to have their liquor license transferred to the proposed purchaser, and further, that if the defendants had made such an application, and the court had refused to transfer the license the defendants would not be liable in any sum to the plaintiff.

The defense was that the modification of the terms as proposed by Kei'nan, and the impossibility of knowing what action the license court would take if the defendants had proceeded to test it with an application for a transfer of the license^ made them liable for no more than nominal damages. The court submitted the case to the jury on the theory that the plaintiff was entitled to recover the whole of the commission as such, or none, saying in substance: “ If the defendants called off the deal after the plaintiff secured a purchaser, without ascertaining whether the license court would transfer the license or not, the subsequent calling off the deal would not affect his right, or relieve themselves- of their liability to him.”

The agreement was entered into with the knowledge that its subject-matter did not have any market value-, and with the understanding that its consummation depended upon a condition over which neither party had any control, nor in regard to which they could make a valid contract. The defendants were not bound to accept any purchaser who might be proffered by the plaintiff, and had a right to withdraw from the contract subject to their liability to him. If they withdrew for a good reason, as explained in Cronin v. Sharp, 16 Pa. Superior Ct. 76, they would be liable for nominal damages only. However, if they did not act in good faith and withdrew from the transaction as a mere subterfuge in order to secure a higher price, or to relieve themselves from the payment of the plaintiff’s .claim, he was entitled to proper compensation for his time, labor and expenses incurred in good faith in the defendants’ interest: Vincent v. Oil Co., 165 Pa. 402; Kelly v. Marshall, 172 Pa. 396.

This view of the subject sustains the objections to the answers to the defendants’ points, as embraced in the second, third and fifth assignments of error.

The judgment is reversed and a venire facias de novo awarded.

Rice, P. J., dissents.