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FREIWALD v. FIDELITY INTERSTATE CASUALTY CO. (01/21/58)

January 21, 1958

FREIWALD
v.
FIDELITY INTERSTATE CASUALTY CO., APPELLANT.



Appeal, No. 291, Oct. T., 1956, from judgment of Municipal Court of Philadelphia County, July T., 1954, No. 802, in case of Albert E. Freiwald v. Fidelity Interstate Casualty Co. Judgment affirmed; reargument refused February 11, 1958.

COUNSEL

Ralph B. Umsted, for appellant.

Herbert W. Salus, Jr., with him Milton Berger and Wollman, Tracey, Schlesinger & Salus, for appellee.

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

Author: Gunther

[ 185 Pa. Super. Page 191]

OPINION BY GUNTHER, J.

This is an action to recover commission for securing a mortgage commitment. In September 1953, defendant, acting through its agents, authorized plaintiff to secure a mortgage commitment for premises

[ 185 Pa. Super. Page 192]

#2209-2211 Chestnut Street, Philadelphia, Pennsylvania, in the sum of $75,000 for which defendant agreed to pay plaintiff the sum of $1,000. On or about September 30, 1953, plaintiff did secure a commitment and acceptance thereof by defendant, and on March 8, 1954, defendant was advised that the prospective mortgagee was ready, willing and able to go through with loan, but defendant refused to complete its performance of the alleged contract.

The case was first tried before Judge JONES and resulted in a new trial. It was later tried before Judge WILLITS without a jury and resulted in a finding for the defendant.

The court en banc subsequently, however, entered judgment n.o.v. for plaintiff and this appeal followed.

Defendant argues that the lower court was in error in entering judgment n.o.v. It bases its argument on the contention that the payment of the commission was contingent upon the mortgage transaction being completed and inasmuch as the transaction was not completed, there was no obligation to pay the commission. The part of the letter relied upon by defendant to prove the existence of the suggested condition precedent reads as follows:

"My charge in this matter will be $1,000 for services in this matter, which is to be shared with Abner Levy when received at the time of final and ...


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