Appeal, No. 122, March T., 1964, from judgment of Court of Common Pleas of Allegheny County, April T., 1959, No. 23, in case of Dan R. Jennings and Daniel B. Cantor v. Pittsburgh Mercantile Company. Judgment reversed.
Henry E. Rea, Jr., with him Brandt, Riester, Brandt & Malone, for appellant.
Robert M. Entwisle, with him Alfred James Duff, and Miller, Hay, Entwisle & Duff, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE COHEN
Appellees, Dan R. Jennings, a Pittsburgh real estate broker, and his associate, Daniel B. Cantor, a New York real estate investment counselor and attorney, instituted this action of assumpsit against Pittsburgh Mercantile Company (Mercantile) to recover a real estate brokerage commission for the alleged consummation of a sale and leaseback of all of Mercantile's real property. Mercantile appeals from the lower court's denial of its motion for judgment n.o.v. after jury verdict for appellees.
The principal issue in this appeal is whether there was sufficient evidence upon which the jury could conclude that Mercantile clothed its agent with the apparent authority to accept an offer for the sale and leaseback thereby binding it to the payment of the brokerage commission, the agent having had, admittedly, no actual authority to so do.
Mercantile is a publicly-held corporation with over 400 shareholders. It is managed by a nine-member board of directors. An executive committee, consisting of the three major officers, functions between the board's quarterly meetings.
The facts in issue viewed in a light most favorable to appellees are as follows: In April, 1958, Frederick A. Egmore, Mercantile's vice-president and treasurer-comptroller, and Walter P. Stern, its financial consultant,
met with Jennings, explained Mercantile's desire to raise cash for store modernization and provided Jennings with information concerning Mercantile's finances. Jennings was asked to solicit offers for a sale and leaseback.
At this meeting Egmore made the following representations: (1) the executive committee, of which Egmore was a member, controlled Mercantile and (2) would be responsible for determining whether the company would accept any of the offers produced by Jennings; (3) subsequent board of directors' approval of the acceptance would be automatic. Egmore promised the payment of a commission if Jennings succeeded in bringing in an offer on terms as to amount realized, annual rental, and ...