Appeals, Nos. 238, 254 and 255, Jan. T., 1952, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1951, No. 4636, in case of Samuel T. Hall and Mendes Solis v. The Sheraton Hotel of Philadelphia, Inc. Judgment reversed; reargument refused February 13, 1953. Assumpsit.
J. Channing Ellery, with him Yale L. Schekter and Rambo & Mair, for appellants.
Samuel D. Goodis, with him Edward M. Spector and Sundheim, Folz, Kamsler, & Goodis, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiffs, duly registered real estate brokers, sued to recover their respective shares of the commission allegedly due on the sale of a property belonging to the defendant. The claims are based upon a verbal promise by the defendant to the plaintiffs which was subsequently confirmed in several written agreements between the defendant and the purchaser relative to the sale and purchase of the property. The defendant filed preliminary objections setting forth that "the Complaint discloses that the consummation of settlement for the premises in question, is a condition precedent to the plaintiffs' becoming entitled to payment of commissions for the sale of said premises, and that no settlement therefor has taken place."
The learned court below confined its construction of the agreement respecting commissions, as claimed by the plaintiffs, to but one of the confirmatory writings between the defendant and the purchaser which were referred to in the complaint and attached thereto as exhibits. Altogether, the exhibits to the complaint consisted of an option agreement, an agreement of sale and two subsequent extension agreements postponing the date of settlement. The court below, being of the opinion that settlement for the property was a condition precedent to the defendant's liability to pay the specified commissions and finding that the complaint contained no averment that such condition had been met, held that the complaint failed to state a cause of action and, sustaining the preliminary objections accordingly, entered the judgment for the defendant from which the plaintiffs bring these appeals.
The option agreement, which was entered into on November 23, 1949, granted to one Stevens an option to purchase the defendant's described realty at a specified price for a period of thirty days. The defendant
directly engaged in the option agreement to pay a commission of $50,000 "upon the exercise of the foregoing option to purchase" and expressly "recognized" the plaintiffs and the Nordblom Company "as the brokers entitled to receive the said commission." The complaint avers that the writing confirmed defendant's verbal agreement with the plaintiffs to pay them compensation as therein stated. The option expired on December 23, 1949, without its having been exercised. Twelve days later (viz., on January 4, 1950) the defendant, as vendor, and Stevens, as purchaser, entered into an agreement of sale for the property. Stevens paid $10,000 on account of the purchase price upon the signing of the agreement which further provided that settlement for the property should be made on or before April 4, 1950, at which time $115,000 additional was to become payable. The sale agreement reaffirmed what the option agreement had stipulated, namely, that "It is understood that Samuel T. Hall and Mendes Solis [the present plaintiffs]... and Robert C. Nordblom Company... are the brokers who brought about this sale," and further provided that "The Seller agrees to pay to the aforesaid brokers the sum of $50,000.00 as follows: Samuel T. Hall $17,500.00 Mendes Solis $17,500.00 Robert C. Nordblom Co. $15,000.00 -- 10% of said amounts due each of the aforesaid shall be paid at the time of settlement and receipt by the Seller of the sum of $125,000.00, and the balance at the time of the payment in full of the purchase money second mortgage." The agreement of sale also declared that it represented "the entire agreement between the parties hereto, and supersedes the option agreement for the premises herein involved entered into by the parties dated November 23, 1949."
On March 30, 1950, the defendant and the purchaser entered into a ...