Appeal, No. 362, Jan. T., 1957, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1954, No. 5693, in case of Robert J. Kahn v. The O'Brien Machinery Co. and Andrew C. Levy et al. Judgment affirmed.
Thomas A. Galbally, for appellants.
David S. Malis, with him Robert H. Malis, and Malis, Malis & Malis, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Andrew C. Levy and Leo W. Lynch, co-partners trading as Levy-Lynch & Co., are real estate brokers in Philadelphia. In September, 1953, they circularized other brokers in Philadelphia advertising for sale an industrial property on Delaware Avenue which consisted of buildings, cranes and equipment owned by the O'Brien Machinery Company.
Robert J. Kahn, one of the brokers receiving the circular, contacted Levy and Lynch about the proposed transaction, and then called on Sidney Benjamin, whom he already knew in another connection, and succeeded in interesting him in the Delaware Avenue industrial site. Together they visited the establishment. Benjamin was so impressed by what he saw and what Kahn and Harold Epstein (Kahn's employee)*fn* told him that he offered to buy the property for $175,000, evidencing his earnestness by making out a check for $25,000 as hand money.
On September 23, 1953, Kahn transmitted Benjamin's letter and check to Levy and Lynch with a letter of his own, in which he said: "We are submitting this offer to you with the distinct understanding that in the event a transaction is consummated with Charles Benjamin, Inc., or any of the individuals, affiliates or subsidiaries connected therewith, we will receive from you at settlement a commission of two and a half (2 1/2%) percent of the total gross consideration involved in the transaction."
On September 30, 1953, Kahn, Levy, Lynch, Benjamin and two of the O'Briens, speaking for the owners, met in the offices of Levy-Lynch to discuss the business affair. At this meeting Kahn repeated that in the event a sale to Benjamin was consummated, Kahn was to receive one-half of the total commission collected by Levy and Lynch.*fn** The property owners were not satisfied with Benjamin's offer of $175,000, whereupon Kahn induced him to increase it to $200,000. The owners insisted on $275,000. Although the meeting broke up without agreement on price and each went his separate way, Kahn continued to call on Benjamin, urging him to raise his offer. Benjamin, on the other hand, argued that the O'Briens should reduce their selling price. His usual comment on Kahn's persuasions was: "If they come down, I will come up." This reciprocating elevator service never reached the point where seller and buyer met on the same floor.
On October 5, 1953, Levy and Lynch wrote to Kahn returning the $25,000 deposit ...