229 Pa. 343 | Pa. | 1911
Opinion by
R. A. Saxton brought an action against A. L. Richmond to recover $7,000 for services in selling certain real estate of the defendant in the city of Pittsburg. As averred in the statement, the action was brought on a written agreement dated April 20, 1907, by the terms of which Richmond empowered Saxton to sell the real estate within ten days for $340,000 on the terms set forth in a sale agreement signed by Richmond and delivered to Saxton. Saxton was to receive for his services any excess above the sum for which the property was sold not exceeding ■ $7,000, to be paid when a deed was delivered to the purchaser. The statement further avers that within ten days of the date of the contract Saxton produced a purchaser who executed with the defendant an agreement to purchase the real estate in the exact form of the sale agreement, and a deed for the property was delivered to the purchaser on June 29, 1907. Copies of the contract and sale agreement were attached to the statement.
Before a plea was entered, the defendant Richmond presented a petition to the court averring the bringing of the suit and filing of the statement; that John T. Morris had notified the petitioner that he was entitled to $3,500,
Saxton filed an answer to the rule in which he denied that Morris had any right or interest in the contract sued on or money payable under its terms, denied that the identical money for which the suit was brought was claimed by Morris, averred that Richmond was under direct contractual obligations to pay the same to him, and denied that the petition set forth any matter sufficient in law to sustain an interpleader.
Morris also filed an answer to the petition and rule admitting that he did claim a part of the commission due “by the said A. L. Richmond, Jr., for the sale of his property,” averred that $3,500 of the $7,000, being the identical money for which the suit was brought, was claimed by him; and further averred as follows: “The respondent" avers and alleges that he had certain negotiations with A. L. Richmond, Jr., the defendant in this suit, in regard to the sale of his property . . . .; that the said Richmond agreed to pay him a commission for the sale of same, and that R. A. Saxton, the plaintiff in this suit, solicited the respondent, John T. Morris, to secure the right to sell said property; that he, Saxton, had a purchaser and would divide the commission; that he, in company with the said Saxton, called on the said A. L. Richmond, Jr., and made the arrangements for the sale of said property; the said Richmond and the said Saxton understanding that the commission, amounting to $7,000 was to be divided equally between the said Saxton and your respondent.”
The simple issue raised by the pleadings, as will be. observed, was "whether John T. Morris had a right to demand and receive of A. L. Richmond the one-half of $7,000, the commissions which Richmond admitted he owed for selling his real estate. On the trial Morris testified that Richmond told him and Saxton that if they could sell the property for a satisfactory price he would pay them two per cent commission for selling it. Richmond corroborated this testimony and testified that he had told them that he would pay them jointly a commission of two per cent for selling the property. In fact, the testimony on the part of Morris throughout the trial of the issue tended to show that the commissions were due from Richmond to Saxton and Morris in equal shares. This testimony sustained Morris’s contention as disclosed by the pleadings that he was entitled to receive from Richmond one-half of the commissions for the sale of the property. The effect of the testimony was to show that Morris was dealing directly with Richmond as a real estate broker.
It is conceded by Morris that during the negotiations for the sale of the Richmond real estate he had no license to act as a real estate broker. It is, therefore, apparent that under the pleadings and evidence in the case the learned court below should have peremptorily instructed the jury to return a verdict for Saxton, the plaintiff in the issue. Morris’s claim to the commissions, as disclosed by the pleadings and evidence, rested on his right as
In his printed argument in this court, Morris concedes that if he were seeking to recover from Richmond it would be a good defense and he could not recover because he was not a licensed real estate broker at the time the property was sold. He, however, attempts here to raise an issue other than the one raised by the pleadings in the court below, and claims that the question for determination in the court below and here is: Did Saxton agree with Morris to pay him half of the commissions for the services rendered to him by Morris in bringing him in touch with Richmond and introducing him to Richmond, who put the sale of his property into his (Saxton’s) hands? It is contended that that is the contract which Morris is seeking to enforce against Saxton and not a contract for a commission based on a sale. It is true, as alleged by Morris, that that question was submitted to and found by the jury in his favor. It is manifest, however, that the learned court below, as it subsequently held on the motion for a judgment non obstante veredicto, erred in submitting the question to the jury. It was not
It follows from what has been said that the learned court below should have directed a verdict for the plaintiff in the issue formed to determine the right to the $7,000 due from Richmond as commissions for selling his real estate, and therefore committed no error in subsequently entering judgment for the plaintiff.
It is claimed by the appellee that it was error to allow the interpleader on the Richmond petition. That question does not arise on this appeal and, hence, we cannot and do not consider it.
The judgment is affirmed.