Matolicz v. Hess

Argued November 18, 1925. This judgment, entered for want of a sufficient affidavit of defense, cannot be sustained. A real estate broker sued for commissions alleged to have been earned pursuant to a contract to obtain a purchaser ready and willing to purchase real estate of defendant. The affidavit of defense avers that the commission was to be payable only "if a sale was effected" "upon termssatisfactory to" defendant. He admits an averment in the statement to the effect that he executed an agreement of sale to a proposed vendee (procured by plaintiff) for $14,000, of which $2500 was to be paid in cash at the signing of the agreement, but denies that the purchaser made that payment; on the contrary, he avers that the proposed vendee gave him a check for that sum which was presented in due course and that the bank refused payment, advising that the depositor's account had been closed. It is also, averred that the proposed purchaser was never ready, willing, or able to purchase the land and that no sale had been effected, and that defendant still had the land. Proof of those facts at the trial will of course bar recovery: Keel v. Schadewald, 80 Pa. Super. 425, 427. If they are true, the proposed vendee never qualified himself to demand performance. Defendant did nothing to interfere with the proposed sale; he was ready to perform; he was in no default.

As defendant avers that plaintiff was to receive no commission unless a sale was effected (compare Simon v. Myers, 284 Pa. 3. see p. 8), the conduct of defendant not having prevented it, the authorities cited by plaintiff to the effect that a broker has earned his commission when he procures a party with whom his principal is satisfied and who actually contracts for the property at a price satisfactory to the owner, have no application at this stage of the ease.

The judgment is reversed and the record is remitted for further proceedings.