10 Pa. Super. 618 | Pa. Super. Ct. | 1899
Opinion by
The defense to the plaintiff’s claim for commission is that he did not first bring the purchaser to the seller; that he never procured an acceptable offer, and that the act of a third party was the efficient cause of the sale. It will be seen that these are allegations of fact. Testimony was submitted, which to some degree supports them all. The trial judge in sending the case to the jury submitted the comprehensive question: Did the plaintiff furnish the purchaser ?
Upon all the testimony the date when Kaufmann was first taken to inspect the house was doubtful. The plaintiff says that he thinks he took him there on February 22, and that a proposition was submitted to the defendant on the 23d. Another agent testifies that he took Kaufmann to inspect the house previous to February 22, and Kaufmann is not able to say whether the second broker procured from him an offer to the defendant before the offer through the plaintiff, or not. Under these circumstances it was not possible for the court to do otherwise
The only offer communicated to the defendant by the plaintiff from Kaufmann was $8,000 in cash and certain shares of-stock in a manufacturing company. This offer was declined. Subsequently the defendant accepted from a Mr. Mesta an offer of $14,000 from Kaufmann. In this transaction the shares of stock also figured. The offer was in form practically the same as that submitted through the plaintiff but with a substantial difference when it reached the vendor, namely, that Mr. Mesta would take the shares of stock at a price which netted the defendant $6,000, and which, with the $8,000 cash, made the purchase money $14,000 cash to the vendor. The shares of stock passed through the defendant by transfer. Technically they may have been a part of the purchase money, but the transaction to the vendor was cash. In this aspect it was materially a different sale from that proposed through the plaintiff. By the conversion of the offer of cash and stock into a sale for all cash, the act of Mr. Mesta became the efficient or procuring cause of the sale.
Upon the testimony submitted, the plaintiff has no cause to complain that the case went to the jury on the broad question submitted by the court. True it has been held that “ a broker becomes entitled to his commission whenever he procures for his principal a party with whom he is satisfied and who actually contracts for the purchase of the property at a price acceptable to the owner,” but he must also prove “ that his agency was the procuring cause of the sale:” Hartley v. Anderson, 150 Pa. 391; Keys v. Johnson, 68 Pa. 42; Earp v. Cummins, 54 Pa, 394.
The plaintiff was not injured by the ruling complained of in the first assignment. The subject of the customary commission was before the jury, who have said by their verdict that the plaintiff was entitled to no commission whatever. To have excluded the evidence, the admission of which is the subject of the second assignment, would have cut out a large part of the defense. It was within the defendant’s right to show the circumstances under which the property was finally sold. The third to the twelfth assignments are to parts of the charge. Some of these, as detached excerpts, might be made the subject
The assignments of error are therefore dismissed and the judgment affirmed.
