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STEIN v. FISHER ET AL. (06/12/62)

June 12, 1962

STEIN
v.
FISHER ET AL., APPELLANTS.



Appeal, No. 70, Oct. T., 1962, from decree of Court of Common Pleas No. 1 of Philadelphia County, June T., 1960, No. 2603, in case of Morris M. Stein v. Louis Fisher et al. Decree affirmed.

COUNSEL

Abraham J. Levinson, with him James Dessen, for appellants.

Lawrence M. Aglow, with him Samuel C. Nissenbaum, for appellee.

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

Author: Woodside

[ 198 Pa. Super. Page 152]

OPINION BY WOODSIDE, J.

This is an action in equity brought by a business broker seeking relief as a creditor under the bulk sales provision of the Uniform Commercial Code. The plaintiff

[ 198 Pa. Super. Page 153]

    seeks to recover a commission for the sale of Callahan's Bar. The case was heard before PETER F. HAGAN, President Judge of the Court of Common Pleas No. 1 of Philadelphia, who on behalf of the court, entered judgment in favor of the plaintiff and against the defendants Fisher and Gold in the sum of $3600 with interest from June 28, 1960. The defendants appealed.

The facts found by the chancellor, and approved by the court below, were substantially as follows: Late in December of 1959, Fisher and Gold, the defendants, informed Stein, the plaintiff that they were interested in selling Callahan's Bar, and they gave the plaintiff a general agency to attempt to effectuate the sale for them. The defendants notified the plaintiff that they wanted to receive $75,000 "net" from the sale, but that they "may come down a little bit". When the plaintiff inquired as to what the defendants meant by "a little bit", he was told to produce a potential buyer and the defendants would then discuss what they meant by that term. Later the defendants indicated a willingness to accept $72,000 net. The defendants also informed the plaintiff that they were interested only in the net amount which they were to receive from the sale, and that, therefore, the amount of the plaintiff's commission could be determined only after the gross sale figure had been ascertained.

The plaintiff, through advertising and personal solicitation, succeeded in procuring two potential buyers, Modell and O'Brien, both of whom the plaintiff introduced to the defendants. For several months negotiations were conducted among the plaintiff, the defendants, the defendants' attorney and Modell and O'Brien. Modell's highest offer to purchase the business was $70,000, all of which was to be paid in cash. The defendants eventually refused this offer as inadequate.

O'Brien, on the other hand, agreed to pay the defendants $72,000, a sum ...


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