87 Pa. Super. 406 | Pa. Super. Ct. | 1925
Argued November 9, 1925. This is an appeal by the plaintiffs from the refusal of the court below to make absolute a rule for judgment for want of a sufficient affidavit of defense. The plaintiffs are real estate brokers and the defendant was the owner of a house and lot in the city of Philadelphia. The parties, on September 2, 1924, entered into a written contract of which the material provisions are as follows: "The undersigned (this defendant) *407 hereby employs Koznhowski Reuss as the sole and exclusive agent for the sale of the property described on the reverse hereof for a term of six months, and agrees to pay to the said agent a commission of 2% on the gross consideration upon its sale or exchange by whomsoever the same may be made or effected. The agent's authority hereunder may be revoked by the owner at any time, after the expiration of the above term, when no negotiations are pending for the sale and exchange of the property, but only upon and after thirty days notice in writing to that effect given to the agent". The statement of the plaintiffs averred that while the contract was in full force and effect the defendant, without notice to the plaintiffs, sold the said premises and that thereupon the plaintiffs became entitled to commission on the sale. The statement did not aver the date upon which the sale was made by the defendant, nor that the sale was made to any person with whom the plaintiffs had been negotiating. The affidavit of defense averred that the defendant did not sell the property while his contract with the plaintiffs was in full force and effect, but, on the contrary, that he sold it on March 13, 1925, eleven days after the contractual relations between him and the plaintiffs had terminated, and that the sale was made through another broker.
This case is ruled by the decision of the Supreme Court in Wilson v. Franklin,
The appeal is dismissed, but without prejudice c.