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SOLIS-COHEN v. PHOENIX MUTUAL LIFE INSURANCE COMPANY. (03/17/64)

March 17, 1964

SOLIS-COHEN, APPELLANT,
v.
PHOENIX MUTUAL LIFE INSURANCE COMPANY.



Appeal, No. 251, Jan. T., 1963, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1961, No. 415, in case of J. Solis-Cohen, Jr. v. Phoenix Mutual Life Insurance Company. Judgment affirmed.

COUNSEL

Charles M. Solomon, with him Bernard L. Frankel, and Fox, Rothschild, O'Brien and Frankel, for appellant.

John P. Mason, with him Dechert, Price & Rhoads, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.

Author: Cohen

[ 413 Pa. Page 634]

OPINION BY MR. JUSTICE COHEN

This is an appeal from the judgment of the court below denying appellant, a real estate broker, recovery of commissions he alleges were earned by him as agent for appellee.

Appellee, Phoenix Mutual Life Insurance Company (Phoenix), owns a building at 1007-11 Market Street in Philadelphia. Appellant as agent for appellee's prime tenant, the John Irving Shoe Co. (Shoe Co.), obtained renewals of two pre-existing subleases and secured two new subtenants for the premises. As compensation for these services and for the collection of rents and management of the premises, appellant retained 5% of the rents he collected. In addition, appellant was to receive from Shoe Co., in the event of the termination of his agency, a percentage of the rents yet to be collected on the unexpired leases.

In 1961 Shoe Co. Suffered financial difficulties and was reorganized under Chapter XI of the Bankruptcy Act. Appellee thereupon assumed the subleases. In April, 1961, appellee's agent, Frederick Osmers, asked appellant to continue to manage the building until another agent could be engaged. Appellant offered to remain as agent on condition that he be paid the same compensation upon his dismissal as he was entitled to under his contract with Shoe Co. Osmers advised

[ 413 Pa. Page 635]

    appellant that he had no authority to agree to this condition and that he would be required to consult Phoenix's home office. Without receiving notice of Phoenix's decision on the matter, appellant continued to manage the premises, collect rents and retain 5% thereof until June, 1961, at which time he was dismissed.

In the court below the parties agreed that appellant was entitled to 5% of all rents collected by him. Appellant averred, however, that he was also entitled to a percentage of the rents to be collected following his dismissal in accordance with the terms of his offer to Osmers. Appellee denied this contention. The trial judge found for appellant but the exceptions of appellee to this finding were sustained and judgment entered for appellee. This appeal followed.

The right of a real estate broker to commissions is a matter of contract either express or implied. Seligson v. Young, 189 Pa. Superior Ct. 510, 512, 151 A.2d 792, 794 (1959). Appellant argues that a contract was consummated incorporating his right to the additional commissions when with actual knowledge that his offer contained such a condition, appellee permitted him to act as it agent.*fn1 This contention is not ...


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