170 A. 329 | Pa. Super. Ct. | 1933
Argued October 13, 1933. The plaintiff, a real estate agent, brought this action in assumpsit against the defendant to recover commissions alleged to be due plaintiff on a written contract appointing him agent for the sale of a lot owned by defendant. The issue is a narrow one and involves the proper measure of damages. The facts are not in dispute as the pleadings alone were depended upon to establish the facts. The trial court gave binding instructions and a verdict having been rendered for the defendant, plaintiff appealed.
The written agreement gave the plaintiff the exclusive right to sell certain described real estate at sixty cents per square foot and fixed his commission for making such sale at five per cent of the purchase price. While the agreement was in force, defendant sold the premises at ten cents per square foot, but the plaintiff did not render "any services whatsoever in connection with the negotiation and consummation of such sale." The plaintiff sought to recover as damages a commission at the rate which he would have received if he had made the sale, to wit, five per cent of the sale price. *484
The mere appointment of a broker as sole agent to sell real estate at a stipulated price upon a stated commission does not entitle the broker to a commission if the owner himself sells the real estate during the term of the broker's employment and the broker did not produce a purchaser during the term of the contract ready, able, and willing to purchase the property. The parties may, however, by contract fix the stated commission as a measure of damages for breach of contract: Turner v. Baker,
The plaintiff, recognizing the force of these principles, relies on a portion of the contract which is as follows: "If C. Harry Johnson or any one else, prior to withdrawal of this agency, shall sell said property or produce a person who is willing to purchase on the terms hereinafter specified I agree to pay to C. Harry Johnson the commission hereinafter specified, five per cent (5%)." He insists that this provision is applicable in the event that the owner sells the property at any price and even though less than that provided for by the agreement. In other words, he urges that the clause "on the terms hereinafter specified" applies only to a case where the agent produces a person who is willing to purchase.
The agreement was apparently prepared by the plaintiff on one of its printed forms, and if the construction were at all doubtful it should be construed most strongly against the plaintiff: Wilson v. Franklin,
The judgment of the lower court is affirmed.