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PERRY v. SPELLMAN. (03/22/61)

March 22, 1961

PERRY, APPELLANT,
v.
SPELLMAN.



Appeal, No. 354, Oct. T., 1960, from judgment of Court of Common Pleas of Chester County, March T., 1958, No. 79, in case of William E. Perry v. Charles Spellman et al. Judgment reversed.

COUNSEL

Robert W. Lentz, with him G. Clinton Fogwell, Jr., and Reilly & Fogwell, for appellant.

John O. Platt, Jr., with him MacElree, Platt & Marrone, for appellees.

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

Author: Ervin

[ 194 Pa. Super. Page 556]

OPINION BY ERVIN, J.

The plaintiff, William E. Perry, a real estate broker, brought suit in assumpsit for a broker's commission by virtue of an oral agreement made with the defendant, Charles Spellman. The jury rendered a verdict

[ 194 Pa. Super. Page 557]

    in favor of the plaintiff in the amount of $2,364.00. The court below entered judgment n.o.v. for the defendant. The plaintiff appealed.

The plaintiff is entitled to the benefit of every fact and inference of fact which may be reasonably deduced from the evidence: Jemison v. Pfeifer, 397 Pa. 81, 152 A.2d 697. Viewed in this light the facts are as follows: The plaintiff, William E. Perry, a licensed real estate broker, was orally engaged in May of 1956 by the defendant, Charles Spellman, to sell the business, Chester County Fuel and Supply, Inc., for a price of $40,000.00. The business was conducted on real estate owned by Spellman and his wife. In the latter part of May, Spellman called Perry by phone and told him that he wanted to sell the business and during the conversation Perry pointed out to Spellman that he should take into consideration among his selling expenses a 5% broker's commission. Spellman indicated that this was satisfactory. Perry subsequently produced several prospects and in late 1956 or early 1957 procured for the defendant one Robert Nolan. Nolan then entered into a written agreement of sale dated February ,*fn1 1957 with the defendant. In paragraph 7 thereof Spellman warranted and represented certain facts pertaining, inter alia, to the quantity of retail sales of fuel oil sold by the corporation between January 31, 1956 and January 31, 1957, as well as the number of active customers as of the date of the agreement.

Paragraph 13 of the agreement provided: "In the event that between the date of this agreement and closing, buyer is not satisfied as to the truth or correctness of seller's warranties set forth in Paragraph 7 hereof, he may at his option either terminate this agreement by notice in writing to the seller, in which event

[ 194 Pa. Super. Page 558]

    the $4000.00 down payment shall be returned to buyer by the escrow agent and all rights, obligations and liabilities of the parties shall cease and terminate, and this agreement shall become null and void, or buyer may proceed with closing with a proportionate reduction in the selling price if required hereunder." Also in the agreement the corporation, as seller, agreed to pay the plaintiff a commission of $2,000.00, representing 5% of the purchase price of $40,000.00, exclusive of inventory and accounts ...


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