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March 13, 1962


Appeal, No. 341, Jan. T., 1961, from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1957, No. 1214, in case of Jacob H. Axilbund, Arthur Balsam, Lester H. Krawitz et al. v. D. Edward McAllister and 917 Filbert Street Corp. Judgment reversed and new trial ordered; reargument refused May 3, 1962.


Allen J. Levin, with him Folz, Bard, Kamsler, Goodis & Greenfield, for appellants.

George P. Williams, III, with him Schnader, Harrison, Segal & Lewis, for appellee.

Before Bell, C.j., Jones, Cohen, Eagen and Alpern, JJ.

Author: Jones

[ 407 Pa. Page 48]


This appeal challenges the propriety of the entry by the court below of a judgment n.o.v. in an assumpsit action instituted for the recovery of a real estate broker's commission.

Lanard & Axilbund*fn1 (Axilbund) is a partnership engaged in the real estate business in Philadelphia. 917 Filbert Street Corporation (Filbert), of which D. Edward McAllister was the president and principal stockholder, was the owner of a building located at 24th and Locust Streets, Philadelphia. On September 24, 1957, Filbert sold that building to one Julius Gross for $295,000.

[ 407 Pa. Page 49]

Axilbund then instituted this assumpsit action against McAllister*fn2 and Filbert in the Court of Common Pleas No. 7 of Philadelphia County claiming that its efforts as real estate brokers constituted the immediate, efficient and procuring cause of the sale of the building to Gross by Filbert and, by reason thereof, it became entitled to a real estate broker's commission. After issue joined, the matter was tried before Judge CHUDOFF and a jury and the jury returned a verdict in favor of Axilbund and against Filbert in the amount of $17,644.*fn3 Filbert filed motions for a new trial.*fn4 and judgment n.o.v. and the court granted the motion for judgment n.o.v. From the entry of that judgment this appeal has been taken.

In passing upon the propriety of the entry of this judgment n.o.v. "the testimony must be read in the light most favorable to [Axilbund], all conflicts therein must be resolved in his favor, and [it] must be given the benefit of all facts and inferences from facts reasonably deducible from the evidence": Kuhns v. Bruger, 390 Pa. 331, 335, 135 A.2d 395 and cases therein cited.

In such light we examine the record facts. Prior to May, 1957, Axilbund had dealt with Filbert, having on one occasion represented the seller of a property which Filbert purchased and on another occasion rented some building space for Filbert. It is undisputed that, in the early part of May, 1957, Jacob Axilbund, at McAllister's invitation, met with McAllister to discuss the sale of the Filbert building and, at that meeting, Jacob Axilbund tried, without success, to secure from Filbert

[ 407 Pa. Page 50]

    for Axilbund an exclusive sales agency for the building. Finally, as appears from a stipulation entered into at trial, McAllister, acting for Filbert, informed Axilbund that "if they produced a purchaser for the premises for $300,000 net,*fn5 the usual brokerage commission would be paid". At that meeting Jacob Axilbund told McAllister that Axilbund had a client named Julius Gross whom, he believed, could use the building and he said he would arrange to have Gross inspect the building.

At that time Axilbund, which two months previously had sold a property for Julius Gross,*fn6 was looking for a building suitable for purchase by Gross and to which he could move his printing establishment. Upon Jacob Axilbund's return from this meeting with McAllister, he informed his partner Balsam of the availability for purchase of the Filbert building and Balsam then contacted Gross. From that time on Jacob Axilbund had only three contacts with Filbert: (1) that same day to arrange for an inspection of the building; (2) several days later to inquire whether a parking lot in the rear of the Filbert building belonged to Filbert; (3) in the latter part of September or the early part of October, after learning of the sale to Gross, Jacob Axilbund visited McAllister, stating "you sold that building to my customer and therefore I am entitled to my commission" to which McAllister replied "I don't know anything about that. All I know is that Mr. Gross came in to see me about this building."

Balsam testified that, after being informed of the availability for purchase of the Filbert building, he

[ 407 Pa. Page 51]

    contacted Gross by phone and arranged to meet him the next day and take him through the Filbert building. Balsam, George Axilbund and Gross the next day inspected the building; during the course of that inspection, there was a discussion whether the height of the ceiling would preclude the use of Gross' heavy printing presses and whether this difficulty could be overcome by digging into the ground, the availability of a railroad siding and the ownership of the adjoining parking lot. Balsam at that time informed Gross that the purchase price would be $315,000.*fn7 Gross said he would discuss the matter with his son and son-in-law. From that time on Balsam, although he did not see Gross, called him eight or nine times on the telephone between May and October, 1957. In the early conversations Gross told Balsam that his son and son-in-law were too busy at that time to look at the property but, on or about June 1, 1957, Gross told Balsam that he was not interested in the Filbert building and wanted a one story building or a piece of vacant land. However, even after that, Balsam continued to call Gross.

The parties stipulated that Julius Gross, for the Julius Gross Investment Corporation, without Axilbund's knowledge, purchased the building from Filbert, directly and without the intervention of any broker, for $295,000.

Filbert's defense is two-fold: (1) that Axilbund did not procure the sale of the property but that the sale was induced by a direct contact between Gross and Filbert; (2) that, if there was any contract between Axilbund and Filbert (which the latter denies), the contract was a "special contract", i.e., that Axilbund was retained by Filbert on a non-exclusive basis to sell the Filbert ...

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