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ANDRIEN v. BENNETT. (11/11/59)

November 11, 1959

ANDRIEN, APPELLANT,
v.
BENNETT.



Appeal, No. 308, Oct. T., 1959, from judgment of Court of Common Pleas of Chester County, Feb. T., 1956, No. 64, in case of James J. Andrien v. William C. Bennett et al. Judgment reversed.

COUNSEL

William H. Mitman, with him Stively and Mitman, for appellant.

Robert S. Gawthrop, Jr., with him Gawthrop & Greenwood, for appellees.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Ervin

[ 191 Pa. Super. Page 151]

OPINION BY ERVIN, J.

This is an action in assumpsit brought by the plaintiff, a licensed real estate broker, for recovery of a

[ 191 Pa. Super. Page 152]

    commission from the defendants for the sale of a dwelling property.

The plaintiff was called to the premises of the sellers and an oral agreement of brokerage was entered into on Wednesday, January 18, 1956, whereby the owners instructed the plaintiff that if he could get $10,500.00 for the property, he should go ahead and sell it. A commission of five per cent was to be paid to the plaintiff. The plaintiff immediately undertook to perform his agreement and exhibited the house to several prospects. On Saturday evening, January 21, 1956, the plaintiff was showing the house to prospective purchasers by the name of Albert J. Gaiser and his wife. The owners came to the property at this time and the plaintiff informed them that he had exhibited the property Friday and again that Saturday morning. He stated that he had definite prospects in the house at that time and identified the prospects as the Gaisers, indicating that they were very much interested in the property and that he expected them to buy it. The defendants expressed their approval. Shortly thereafter, that same Saturday evening, January 21, 1956, the Gaisers, who had only recently married and desired the dwelling for a residence, indicated that they would buy the house and instructed the plaintiff to prepare an agreement of sale, indicating that they would sign such an agreement and would give him a check as down payment. The plaintiff made an appointment to meet with the Gaisers the following morning at ten o'clock for the purpose of concluding the transaction. The following morning the Gaisers again appeared, together with the elder Mr. Gaiser, father of the prospective purchaser, and the four visited the house once more, returned to the plaintiff's office and executed an agreement of sale for the property, which agreement was dated the preceding day, Saturday, the 21st, and delivered the check of the senior

[ 191 Pa. Super. Page 153]

Gaiser to the plaintiff in the amount of $100.00 to bind the transaction. This took place at approximately 11:45 in the morning. The plaintiff immediately called the defendants on the telephone and spoke with William C. Bennett, informing him that he had sold the property. Mr. Bennett expressed regret and indicated to the plaintiff that he had just sold the premises himself that morning. The plaintiff offered to bring to the defendant's home the agreement of sale and expressed a desire to discuss the subject but the defendant informed him that he would not sign the agreement and advised the plaintiff that he didn't want to be bothered. Nevertheless, the plaintiff went to the premises of the defendants but was unable to gain entrance. Later in the afternoon he again called the defendant and asked to be permitted to deliver the agreement but again was rebuffed by the defendant, William C. Bennett. Plaintiff then instituted this suit in assumpsit. A board of arbitrators entered an award in favor of the plaintiff and against the defendants in the sum of $548.12. The defendants appealed to the court of common pleas and the matter was tried before a jury, which rendered a verdict in favor of the plaintiff in the sum of $589.25. A new trial was granted on the ground that the trial judge erred in refusing to charge the jury concerning the legal effect of the signing of the contract by the Gaisers on Sunday. The matter was retried before a jury and upon conclusion of the plaintiff's case, the defendants elected to offer no ...


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