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CHERRY v. WOLF (06/17/65)

decided: June 17, 1965.

CHERRY, APPELLANT,
v.
WOLF



Appeal from judgment of County Court of Allegheny County, No. 1071 of 1963, in case of Louise Cherry v. Jack Wolf et al.

COUNSEL

Theodore L. Moritz, for appellant.

Samuel J. Goldstein, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J.

Author: Watkins

[ 205 Pa. Super. Page 485]

This is an appeal from the judgment of the County Court of Allegheny County entered after a trial in an assumpsit action for a real estate broker's commission before the court below, sitting without a jury, in favor of Jack Wolf and Lillian Wolf, his wife (hereinafter referred to as sellers), and Jessie M. Vann (hereinafter referred to as buyer), the defendants-appellees, and against Louise Cherry (hereinafter referred to as broker), the plaintiff-appellant; and from the denial by the court en banc below of a motion for a new trial.

Louise Cherry was a registered real estate broker. After reading an advertisement setting forth that a certain property in Pittsburgh owned by the sellers was for sale at a price of $28,000, the broker got in touch with the sellers at their home and was given permission to obtain a buyer. The broker then contacted the buyer, a long standing friend, and interested her in the purchase of the property. A contract of sale was drawn dated May 1, 1961 which was executed at a later date by the sellers and the buyer and it provided for the sale of the property for a consideration of $28,000, title to be delivered on or about July 1, 1961.

The agreement contained a stipulation that the appellant was the only recognized broker in that transaction and was to be paid a commission of six (6%) per cent. at the consummation of the sale. At the signing a check of the buyer, in the amount of $500 was delivered to the broker as down money, which was to be held in escrow until the consummation of the sale. The check was never presented for payment until April 24, 1963 when Mellon National Bank refused to honor the item as being stale. The agreement also provided that: "In the event that the party of the second part (the buyer) is unable to secure additional funds for

[ 205 Pa. Super. Page 486]

    a mortgage the agreement will become null and void." It is also clear from the record that the buyer and the broker understood that the buyer would not purchase until she sold her own property so that the purchase money would be available for the new purchase.

Mrs. Wolf, one of the sellers testified that the broker came to her prior to the closing date of July 31, 1961 and asked her to release the buyer from the agreement because she could not sell her home and so "wanted out". The seller agreed to release the buyer and thereafter in July again put the property on the market. Several agencies were contacted and the house was regularly advertised for sale in the newspapers. After two "open houses" to encourage a sale, a Mrs. Jessie R. Klee, who was an employee of W. I. Berman Company, a real estate agency that had been contacted by the sellers, having heard of the prior interest of the buyer, called on her and after some negotiations reduced the selling price to $26,500 and a sales agreement was concluded with the buyer on March 28, 1962. The Berman agency was paid the real estate commission.

Mrs. Wolf testified that she had no dealings of any kind with the broker between July and the time of the 1962 agreement. She further testified that she had no understanding with either the broker or the buyer that the purchase of the property depended upon the sale of the buyer's property, and when she released the buyer from the sales agreement at the request of the broker it was without reservation.

The buyer testified that she told Mrs. Wolf and Miss Cherry that she wouldn't buy the property until she sold her Oakmont property. She considered the transaction terminated in July. The record also discloses that prior to the final agreement of sale the buyer had disposed of lots for $10,000 but ...


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