19 Pa. Super. 604 | Pa. Super. Ct. | 1902
Opinion by
The plaintiff sues on a written contract under seal, dated March 19, 1896. It recites that the defendant “ has placed in the hands of W. L. Raeder for the period of twelve months, and thereafter until withdrawn by sixty days’ written notice, ” certain described real estate “ to be sold by W. L. Raeder at a price not less than $25,000; the said W. L. Raeder to have for his time, trouble, services and advertising, $500 commission. And said C. E. Butler agrees to make perfect and unincumbered title for said property at price aforesaid.” It was further agreed that if the said property should be “ sold or exchanged in the mean time by some one else, he, said C. E. Butler, agrees to pay said Raeder commission aforesaid, for his time, trouble, services and advertising of said property, which W. L. Raeder
Butler, the defendant, to escape liability on his contract (which he says he did not read), asserts, first, that the plaintiff dealt as a real estate broker and that he had no license, whereby the contract became illegal and void; and second, that under the terms of the contract the commission in ease of a sale made by another than the plaintiff was to be paid only in consideration of services and advertising by the plaintiff, and that he failed to perform the services and to advertise as contemplated by the contract.
As to tire first matter. The plaintiff testified that when he executed the contract with the defendant he was not a real estate broker, and that he had never taken out a license as such. He proved'that he was a member of the bar, and that for himself and clients he sold and took charge of real estate. The defendant sought to prove that tire plaintiff was doing a real estate brokerage business without license and was, therefore, unable to enforce his contract. See Johnson v. Hulings, 103 Pa. 498. The evidence to prove this was feeble but more than a scintilla. The written contract which the plaintiff relied upon was of a character to bring it within the general business of a real estate broker, if made by one engaged in such occupation, since the subject-matter was the sale of real estate for another and the compensation was by commission. The court below erred in holding that the phrase, “ placed in the hands of . . . . to be sold,’’used in the contract, conferred upon the plaintiff a right to the possession of the defendant’s property. It is a familiar form of expression used to indicate the appointment of an agent for the sale of property. The first question for the jury was, then, whether the plaintiff was a real estate broker: Yedinskey v. Strouse, 6 Pa. Superior Ct. 587. If he was, having no license, his right to recover his stipulated commission was gone : Johnson v. Hulings, supra,
As to the second matter. The compensation whether the sale is made by the plaintiff or another is designated as a commission, which is compensation based upon a percentage on the sale price. The commission, if the plaintiff made the sale, was two per cent on the price to be secured. The sale made by the defendant was for a less price than the plaintiff was required to get. In this case, on performance of the duties imposed upon him by the contract, the plaintiff was entitled to the same percentage as commission on the price realized. This was the position taken by tbe court below and it is approved by a majority of this court.
It will be seen that some of the views herein expressed differ from those held by the court below. What has been said will sufficiently guide the court on a retrial, without reviewing specifically the several assignments of error.'
The judgment of the court below is reversed, and a venire facias de novo is awarded.