51 A.2d 511 | Pa. Super. Ct. | 1946
Argued November 18, 1946. Plaintiffs were duly licensed real estate brokers. Defendants, owners of real estate in Delaware County, entered into a written agency agreement with plaintiffs on March 31, 1945, as follows: "The undersigned hereby employs Hambleton and Ezekiel as the sole and exclusive agent for the sale of the property described on the reverse hereof for a term of 2 months, and agrees to pay to the said agent a commission of (5%) on the gross consideration upon its sale or exchange, by whomsoever the same may be made or effected." The real estate described in the agreement was the residence property of defendants at 345 Fairfax Road, Drexel Hill; the designated sales price was $7,950. In accord with the agreement, plaintiffs secured a purchaser, ready, able and willing to buy the property at that price. An agreement, prepared by plaintiffs, embodying the terms of the sale, was signed by the prospective buyer on April 18, 1945. Defendants refused to sign the agreement or to convey the property to the buyer on payment of the sales price.
Plaintiffs in this action sued for their commission of 5% of the agreed sales price. In their statement of claim they recited the above contract of agency; they averred that they had procured a purchaser at the agreed price and that the defendants refused to enter into a sales agreement with the purchaser or to convey the premises to him on receipt of the purchase price. Defendants' sole reason for non-performance of their contract *449 with plaintiffs, is set forth in their affidavit of defense thus: "Defendants aver that on or about the 28th day of March, 1945, the wife defendant placed said premises with the plaintiffs' agent for sale, with the proviso that the defendants would not enter into any agreement of sale unless and until the defendants had been able to enter into an agreement of sale for another property into which they might be able to move. At this time the plaintiffs, and their agent, Grant G. Hambleton, aforesaid, orally agreed to list defendants' property for sale subject to said proviso. On the 31st day of March, 1945, the said Grant G. Hambleton, agent for the plaintiffs, appeared at the defendants' home and demanded that they sign an exclusive agency agreement, plaintiffs' Exhibit `A', explaining to the wife defendant that the purpose of signing the exclusive agency agreement was to make sure that no other agent or agents would be able to run in and out of the house showing it to prospective buyers. At the time of delivering to the plaintiffs' agent Exhibit `A' signed by the defendants, the wife defendant again brought to the attention of the plaintiffs' said agent, that the defendants would not sign any agreement of sale unless and until they had secured a new home for themselves." On plaintiffs' petition and rule, judgment, in the amount of the commissions, was entered for them by the president judge of the lower court, for want of a sufficient affidavit of defense. Thereafter on defendants' motion, the majority of the lower court, the president judge dissenting, opened the judgment and in effect reinstated and discharged plaintiffs' rule. The affidavit of defense did not allege the omission of a parol agreement from the writing through fraud, accident or mistake.
The modern parol evidence rule is stated in Gianni v. Russell Co., Inc.,
On moving to have the judgment opened, defendants also offered an amendment to their affidavit of defense in which they alleged that the condition imposed on their agreement to sell was omitted from the written contract "by fraud, accident or mistake." The bald averment of the omission on such ground is but a conclusion of law and is not enough. Where fraud or accident or mistake is set up in a pleading as a ground for relief, the facts which constitute it must be averred. Levine et al. v. Pgh. State Banket al.,
Order reversed and judgment reinstated.