Robert Boyd, Jr., Philadelphia, for appellants.
Samuel B. Brenner, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.
[ 175 Pa. Super. Page 253]
This is an action in assumpsit brought by Charles Simon, trading as A. B. C. Business Brokers, to recover from Nicholas Reiter and Barbara Reiter, a broker's commission earned by procuring a purchaser for a property owned by the defendants. Following the presentation of points for charge the trial judge issued binding instructions to the jury which returned a verdict for the plaintiff in the sum of $2500. The court en banc denied defendants' motions for judgment non obstante veredicto and for a new trial. Judgment was entered for the amount found by the jury and from this judgment the defendants appealed.
The following facts are not in dispute. The appellants were owners of premises and a taproom business at 5901 Augusta Street, Philadelphia. The appellee obtained a purchaser for the property and on July 14, 1948, had an agreement of sale executed by the appellants and the purchaser.
The agreement of sale provided inter alia: 'It is understood that a commission of 5% (five percent) be paid to the A. B. C. Business Brokers by the Seller.
'It is understood that A B C Business Brokers is acting as Agent only and will in no case whatsoever be liable to either party for the performance of any terms or covenants of this agreement, or for damages for non-performance thereof.
'The parties hereto waive all representation and warranties express or implied, the written terms of this contract herein contained embody all the terms of this contract.'
It was agreed by the purchaser and appellants that the terms of the purchase money mortgage would be decided at a later date, although the interest rate was set at 5%.
[ 175 Pa. Super. Page 254]
In accordance with the written agreement the purchasers gave the appellants a deposit of $1000 on the day the agreement was executed, and an additional deposit of $3000 on July 26, 1948. Both of these ...