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CONNELL v. AVON GARAGE COMPANY (01/08/58)

January 8, 1958

CONNELL
v.
AVON GARAGE COMPANY, APPELLANT.



Appeal, No. 386, Jan. T., 1957, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1954, No. 1141, in case of Kay D. Connell, trading as Connell Realty Company, v. Avon Garage Company, Inc. Judgment affirmed; reargument refused February 5, 1958.

COUNSEL

Joseph F. McVeigh, with him Leonard B. Rosenthal, Joseph C. Mansfield, and Myers, McVeigh, Mansfield & O'Brien, for appellant.

Lewis H. Van Dusen, Jr., with him Robert S. Ryan and Roland C. Heisler, for appellee.

Before Jones, C.j., Bell, Chidsey, Arnold, Jones and Cohen, JJ.

Author: Cohen

[ 391 Pa. Page 190]

OPINION BY MR. JUSTICE COHEN

This appeal is from a judgment requiring the appellant

[ 391 Pa. Page 191]

    to pay a brokerage fee to the Connell Realty Company.

From the opinion of the court below the following undisputed facts appear: "This is an action in assumpsit brought by Kay G. Connell, trading as the Connell Realty Company, against the Avon Garage Company, Inc., for breach of contract. Plaintiff contends that the Connell Realty Company entered into a valid agreement with the corporate defendant whereby plaintiff was to be the exclusive selling agent for the sale of 'the Avon Garage Company, together with all goods, chattels, equipment, business, good will and real estate.'

"The contract was dated June 18, 1954 and by its terms could not be terminated without thirty days prior notice. No notice was given before the alleged breach and thus this contract, if valid, was in effect at that time. By the terms of the contract, defendant agreed to pay plaintiff five per cent of the sale price. The price was stated in the contract to be: '$125,000 cash or better, or $125,000 with reasonable financing.' Plaintiff alleges that, on October 25, 1954, she presented to defendant a prospective purchaser who was ready, willing and able to purchase at the agreed terms [$125,000 with reasonable financing] but the defendant refused to accept the offer. Plaintiff now seeks to obtain her commission having allegedly fulfilled her part of the bargain."

On this appeal the defendant corporation resists payment of the commission on two grounds:

(1) The price term in the agreement was ambiguous and erroneously construed by ...


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