DocketNumber: Appeal, No. 463
Citation Numbers: 215 Pa. Super. 423, 259 A.2d 461, 1969 Pa. Super. LEXIS 1136
Judges: Hoffman, Jacobs, Montgomeby, Montgomery, Oebconb, Spaulding, Watkins, Weight
Filed Date: 11/12/1969
Status: Precedential
Modified Date: 11/13/2024
Opinion by
Plaintiff-appellee, White Realty and Insurance Agency Company (White), in an action of assumpsit based on an oral contract, sought to recover from the appellants-defendants, Joseph A. Moreland et ux., a commission for the sale of the Morelands’ real estate in Montgomery County, Pennsylvania. Judgment on the pleadings was rendered in White’s favor for the amount claimed by White, $2,670, and this appeal followed.
In its complaint, White alleged, “5. On or about May 1966, the defendants, orally, employed White Realty and Insurance Agency Company to procure a purchaser for the property of the defendants. . . .” and “6. By the terms of said agreement the defendants agreed to pay plaintiff 6 per cent of the sale price of the said premises, which sales price was to be a minimum of $44,500.00.” A copy of an agreement of sale of the property, for $44,500, dated May 26, 1966, signed by the Morelands and John J. Stein, as purchaser, was attached to the complaint as Exhibit A.
Appellants’ defense is based on two facts which they alleged in New Matter and which were not denied by White’s Reply. First, the property was not zoned commercial at the time of final settlement and the purchaser refused to settle for that reason. Second, White prepared the agreement of sale. Their primary contention is that the sales agreement negotiated by the broker, White, was a conditional contract because of the provision as to zoning contained therein and, since the contingency did not occur, the broker’s right to a commission expired. They further argue that, if there is any ambiguity in the written agreement, it must be construed most strongly against White, which prepared it.
On the present state of the record before us, we do not believe it is material to the issue that White drafted the agreement of sale, except to establish the fact that it knew of its contents. Not only is White not a party to the agreement of sale, but it also brought its action in assumpsit exclusively on an oral contract, thereby excluding the theory of its being a third party beneficiary to the writing in Exhibit A referring to its commission. Such provision is not a part of the agree
The vital question in this case is whether White fulfilled all the terms of the oral contract for the sale of the Morelands’ property. Generally, on an oral contract for the sale of realty or to find a purchaser for realty entered into between a broker and vendor, the contract of the broker is fulfilled when he finds a purchaser ready, able, and willing to purchase the property upon agreed terms. Sork v. Rand, 422 Pa. 512, 222 A. 2d 890 (1966). Also, generally, when the owner is satisfied with the purchaser produced by the broker, and actually contracts with him, the question of whether the purchaser is able, ready, and willing to consummate the purchase on the day set for settlement is immaterial if there is no fraud or bad faith on the broker’s part. Tice v. Easterday, 148 Pa. Superior Ct. 457, 25 A. 2d 754 (1942); Black Company v. Baker, 88 Pa. Superior Ct. 206 (1926). Nevertheless, the broker is entitled to his commission only where he achieves a result, negotiates a contract, deal, or transaction, or procures from a customer an offer or proposed contract containing a price, term, or condition no different from that which he is authorized to procure or negotiate. Elin v. Mark, 288 Pa. 186, 135 A. 734 (1927). On the alleged facts before us and the legal principles cited above, we conclude that White did not fulfill its contract with the Morelands. It found a buyer for the property on terms different from those agreed to in its oral contract with the owners, i.e., a change of the zoning regulations pertaining to the property not originally contemplated.
The appellants contend that White negotiated a conditional contract and for that reason it should not recover since the condition was not fulfilled. It is
Appellee, on the contrary, contends that the sales agreement was unconditional for the reason that the use of the word “warrant” therein created an enforceable promise rather than a contingency. The word “warrant” has no positive meaning but varies with the
Since we find that White negotiated a sale materially different in terms from those reasonably intended under its contract with the vendors, we conclude that it did not fulfill its obligation under its brokerage contract and is not entitled to a commission.
Judgment reversed and entered for the appellants-defendants.