Appeal, No. 249, Oct. T., 1956, from judgment of Court of Common Pleas of Chester County, July T., 1954, No. 39, in case of John D. Curtin et al. v. Louis M. Marson et al. Judgment reversed.
A. Alfred Delduco, for appellants.
George J. Brutscher, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 195]
This appeal is from the refusal to enter a judgment non obstante veredicto and the refusal of a motion for a new trial in an action brought to recover real estate commission.
On or about February 7, 1954, Louis M. Marson, one of the appellants, authorized John D. Curtin to obtain a purchaser for the sale of his mushroom growing property in Chester County at the price of $25,000.00. John D. Curtin was associated with F. Walter Grace in a partnership duly licensed and registered as real estate brokers. The next day, Curtin obtained an offer of $21,000.00 from a Mr. Lovisa which offer was submitted to appellants and refused. At this time Curtin was told by Marson that he would accept $22,500.00 clear or net to him. Thereafter, on February 11, 1954, Curtin brought Alfred Sciotti and Peter DiAngelo
[ 185 Pa. Super. Page 196]
to inspect the property. They went through the mushroom houses and DiAngelo and Sciotti asked many questions about the water supply, heating plant, ventilation of the houses, sizes of the beds, the amount of top soil available and the acreage and boundaries of the property. Later that day, Curtin told DiAngelo and Sciotti that Marson was asking $25,000.00 for the property and that he had an offer of $21,000.00. He stated to them that he thought the Marsons would take $23,000.00 or $23,500.00 for the property. DiAngelo and Sciotti stated they would like a few days to think it over. However, no offer was made for the purchase of the property through Curtin and he did not at any time communicate an offer to Marsons from DiAngelo and Sciotti.
On February 13, 1954, DiAngelo commissioned one Ralph Walter, who conducted a real estate brokerage business under the name of Kenneth Realty Co., Inc., to buy appellants' property. Earlier the same day Marson told Curtin that he had a telephone call from Walter who threatened him with a lawsuit if he, Marson, would sell the property to DiAngelo and Sciotti by reason of the fact that Marson had listed this property with him for sale in 1952 and 1953 and that he had taken DiAngelo to see this property first, although no agreement in regard to the price was then arrived at. Marson further informed Curtin that Walter did not have the property for sale. The next day Marson again called Curtin and told him that Walter had appeared at his home, advising him that he, Walter, had a purchaser for the property but whose name he would not disclose and that he had an offer of $22,000.00 for the property. Curtin then advised Marson that his only offer to date was $21,000.00 and that DiAngelo and Sciotti were interested in the property and that he was in the process of negotiating with them. While
[ 185 Pa. Super. Page 197]
the offer of Walter was refused in the beginning, later that day it was accepted on condition that he, Marson, would not have to clean out the mushroom houses and empty the beds which would have cost him about $500.00 to do and, further, that the real estate transfer taxes would be paid by the purchaser. These conditions were accepted and an agreement of sale for $22,000.00 was executed designating Kenneth Realty Co. or its nominee as purchaser. The ...