Appeal from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1959, No. 1410, in case of Michael H. Lipper v. Harry Tubis, Helen Tubis, his wife, Herman B. Dubin et ux.
David Berger, with him Herbert B. Newberg, H. Laddie Montague, Jr., and Cohen, Shapiro, Berger & Cohen, for appellants.
I. Raymond Kremer, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones concurs in the result. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Eagen and Mr. Justice Roberts join in this dissenting opinion.
Harry J. Goldberg owned a property at 900 N. Broad Street, Philadelphia, which he desired to sell. Harry Tubis and wife and Herman B. Dubin and wife, trading as the Tubin Furniture Company, desired to purchase this property. They instructed their broker, William J. Diller, to communicate with Goldberg who asked for from $300,000 to $350,000 for the property. Tubis and Dubin declined to buy. Goldberg then placed the property for sale with a well-known real estate company which did not succeed in selling the property. He then displayed a For Sale sign on the property.
Michael H. Lipper, the plaintiff in this case, a licensed real estate broker, happened by chance to see Mrs. Peck, secretary to Mr. Goldberg, on the street one day and offered to take her in his automobile to her destination. During the ride, Mrs. Peck said that if Lipper could obtain "a fast buyer" who would be willing, "without dilly-dallying" to pay $200,000 "or maybe a little less" for the Goldberg property, Goldberg "would come down in price."
Lipper conveyed this information to Tubis and Dubin who said they would pay $150,000, but no more.
Lipper relayed this information to Mrs. Peck who disdainfully rejected the proposition, sardonically adding that Goldberg didn't need an agent to sell "at that price." Lipper met Tubis on the street and related what Mrs. Peck had said and Tubis said he would let Lipper know "in the next couple of days." Shortly after this, Lipper went to Europe.
While he was away, William J. Diller, agent for Goldberg, brought Goldberg together with Tubis and Dubin. Sitting at the table of discussion, flavoring their conversation with the usual give-and-take condiment, which must spice every successful negotiation, the parties arrived at an agreement. Goldberg lowered his asking price, Tubis and Dubin raised their buying price, Diller sliced off a part of his commission, and title to the property changed from Goldberg to Tubis and Dubin for $187,500.
When Lipper returned from his journey abroad, he found that the commercial world had continued to revolve on its axis despite his absence, and that the property which had engaged his rapid and brief representations, was now no longer for sale or purchase. A succulent commission in America had slipped out of his hands while he was viewing the interesting sights across the seas. He brought suit against Tubis and Dubin, demanding 5% of the selling price as his commission on the transaction which was effectuated while he was some 5,000 miles distant. The jury rendered a verdict in his favor for $12,375, plus interest. Tubis and Dubin appealed.
It is the duty of an agent seeking commission on a completed real estate transaction to "establish his employment as a broker, either by previous authority, or by the acceptance of his agency and the adoption of his acts, and . . . that his agency was the ...