Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1961, No. 605, in case of J. Morton Sork v. Jacob H. Rand and Nettie Rand.
Harry R. Kozart, with him Weissman & Kozart, for appellant.
Joseph D. Shein, for appellees.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts dissents.
J. Morton Sork (Sork), a licensed real estate broker, instituted an assumpsit action in Court of Common Pleas No. 2 of Philadelphia County against Jacob H. Rand and Nettie Rand,*fn1 husband and wife and owners of two parcels of real estate, to recover a broker's commissions on the attempted sale of both properties. The case was tried before Judge Charles A. Waters, sitting without a jury, who found in favor of Nettie Rand and against Sork. Sork filed exceptions to the trial judge's finding. The exceptions were dismissed by the court en banc on September 16, 1965.*fn2 From the entry of judgment, Sork has appealed to this Court.
Although Sork in his reply brief, did express disagreement with other portions of the lower court's recital of the facts in its opinion, Sork did not object to the following: "Two pieces of real estate are involved, both apartment houses, and both were owned by Mr. and Mrs. Rand, the original defendants. One is located at 6628 North Eighth Street, in Philadelphia; the other at 6644 North Eighth Street. On December 2, 1960, the Rands signed a so-called standard sales agency contract engaging Victor J. Zaro, a salesman in the employ of Sork, to procure a purchaser for 6628 North Eighth Street, at the suggested price of $225,000, and agreeing to pay a commission of 5% of the selling
price. Sork produced a prospective purchaser, Edward A. Garabedian, and by [a written] agreement dated February 14, 1961, the Rands agreed to sell 6628 North Eighth Street to Garabedian, and Garabedian agreed to buy, for a total consideration of $220,000. The agreement named J. M. Sork and the Priestman Co. and V. J. Zaro as agent, and contained a provision that the agent's commission was to be 5% if title passed, and in case of default, was to be one-half of the amount deposited."
Typed into the form agreement of sale were, inter alia, these conditions: " If title passes the agent's commission is 5%, in case of default, agent's commission is one half of the amount deposited." (Emphasis added).
" This agreement is contingent on the sale of 6644 N. 8th St., Phila. within 90 days from owners' approval of this agreement. If sale of 6644 N. 8th St. is not effected within this period, this agreement shall become null and void and deposits returned to the buyer. The Buyer of 6644 N. 8th St. Phila. must put up a 10% deposit in said Sale." (Emphasis added).
The agreement further provided that "the buyer of 6628 N. 8 St. must have a reasonable credit standing". Edward A. Garabedian, the buyer, designated as his nominees his wife, Kathryn, and his mother, Florence Garabedian.
On February 14, 1961, Sork obtained a sales agency contract from the Rands to find a purchaser for 6644 North Eighth Street. In a written agreement of sale dated April 5, 1961, Edward A. Garabedian with his same nominees, agreed also to buy the property at 6644 North 8th St., Philadelphia.*fn3 ...