Appeal, No. 47, Oct. T., 1963, from judgment of County Court of Philadelphia, Dec. T., 1961, No. 5796A, in case of Vernon D. Cox & Co., Inc. v. John DiMarco et al. Judgment reversed.
Robert G. Hess, with him Howland and Hess, for appellants.
Edmund B. Spaeth, Jr., with him MacCoy, Evans & Lewis, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 201 Pa. Super. Page 598]
Vernon Cox, president of the appellant company, was engaged to find a buyer for the defendants' real estate. As a result of Cox's efforts, Louis Blumberg signed an agreement to purchase the property from the appellants. As a result of the violation of the warranty against restrictions contained in the agreement, Blumberg refused to go through with the settlement, sued to recover his down money and obtained a judgment which we have today affirmed. Blumberg v. DiMarco, 201 Pa. Superior Ct. 592, 193 A.2d 634 (1963).
The complaint in this case avers that the defendant promised to pay the plaintiff, on or before March 1, 1960, a 5% commission amounting to $5,000 for procuring Blumberg as the buyer of the premises, as more fully stated in the agreement of sale, incorporated in the complaint as Exhibit A.
This written agreement of sale between the defendants and Blumberg, to which the appellee was not a party, provided in Paragraph 12: "In consideration of services in procuring the buyer named in the accompanying Agreement of Sale, the sellers named herein hereby agree to pay to Vernon D. Cox & Company, Inc. a 5% commission, at time of final settlement."
Cox testified that he was orally requested by John DiMarco, one of the appellants, to find a buyer for the property and that he produced Mr. Blumberg with whom the defendants executed the agreement of sale referred to. Mr. Blumberg prepared the agreement of sale and inserted the provision that the appellants would pay the appellee a brokerage commission of five percent at final settlement. Cox testified that he did not insert this provision in the agreement of sale or instruct Blumberg to do it.
Cox also testified that he had no conversation concerning the payment of commission with either John DiMarco or any of the other appellees nor, to his recollection,
[ 201 Pa. Super. Page 599]
with their attorney, Thomas S. ...