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SCHLECHTER v. FOLTZ (07/21/55)

July 21, 1955

SCHLECHTER
v.
FOLTZ, APPELLANT.



Appeal, No. 2, Oct. T., 1955, from judgment of Municipal Court of Philadelphia County, Nov. T., 1951, No. 37, in case of Paul E. Schlechter, trading as Schlechter & Company v. Sophie Foltz et al. Judgment reversed.

COUNSEL

Walter Stein, with him Gray, Anderson & Schaffer, for appellants.

Frank J. Eustace, Jr., for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Hirt

[ 179 Pa. Super. Page 120]

OPINION BY HIRT, J.

The action was brought by plaintiff, a real estate dealer, to collect a commission on a sale made by the defendants, the appellants here, of their real estate through another broker. On January 14, 1951, these defendants gave the plaintiff an exclusive right to sell their dwelling property in Philadelphia. In the agency contract, on a printed form, the defendants agreed that: "... if the said property shall be sold or exchanged by me during the term of the said agency whether effected by you or by myself or by any other person, I shall and will pay to you the Philadelphia Real Estate Board's approved commission of 5 percent upon the total selling price." As to the term of the agency the writing provided: "The said sole and exclusive agency shall continue until terminated by me upon and after 30 days' prior notice in writing to you given of my intention so to terminate, but in no event shall it be terminated within less than until sold months from the date hereof." The defendants testified that the phrase in italics was inserted in a blank space in the printed form after they had signed it and

[ 179 Pa. Super. Page 121]

    that they were not given a copy of the contract until three months later. On April 26, 1951, the defendant George E. Foltz, intending to terminate the agency, wrote plaintiff as follows: "Please be advised that we have removed 1940 69th Avenue off the market. I have removed your sign, please call for same at your convenience. You have had this property for sale for over three months and to date you have not had any results. Please acknowledge receipt of release of this property."

The price at which the property was to be listed was set forth in the agreement at $17,000. Defendants through another broker sold the property on July 18, 1951, for $11,500. In so doing they assumed that their letter of April 26, 1951, was effective to terminate plaintiff's exclusive right to sell 30 days from its date. The jury on the trial of this case found for the plaintiff in the sum of $668, and judgment in that amount was entered on the verdict.

The record in this appeal discloses that the defendants are entitled to a new trial for a number of reasons. We need refer to but two of them.

The plaintiff's cause of action was submitted to the jury both on the written contract and on quantum meruit and he was permitted to recover on the latter. This was error. One who claims on an express contract to pay a fixed compensation but who fails to prove his contract, cannot recover on quantum meruit by proving simply the value of the services rendered without showing an actual promise to pay. John Conti Co., Inc. v. Donovan, 358 Pa. 566, 57 A.2d 872. The law implies a promise to pay what services are worth when performed on request and the parties have not expressly ...


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