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LANARD & AXILBUND v. BINSWANGER ET AL. (06/13/68)

decided: June 13, 1968.

LANARD & AXILBUND, INC.
v.
BINSWANGER ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Philadelphia County, March T., 1965, No. 1720, in case of Lanard & Axilbund, Inc. v. Frank G. Binswanger, Jr. et al.

COUNSEL

Louis J. Goffman, with him H. Robert Fiebach, and Wolf, Block, Schorr and Solis-Cohen, for appellants.

Allen J. Levin, with him Goodis, Greenfield, Narin & Mann, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J. Hoffman, J., concurs in part and dissents in part; he would refuse punitive damages but affirm as to compensatory damages.

Author: Montgomery

[ 212 Pa. Super. Page 352]

The plaintiff, Lanard & Axilbund, Inc., brought this action in trespass against the defendants, Frank G. Binswanger, Jr., Richard Calhoun and Binswanger Corporation, to recover damages for loss allegedly sustained by it due to the defendants wrongfully inducing Bue, Inc., the owner of certain commercial property located at Fourth and Willow Streets, Philadelphia, to breach a real estate contract it had with the plaintiff. The particular breach asserted was that Bue executed a lease of these Fourth and Willow Street premises through the defendant Binswanger Corporation as its agent to Charles Price at the time plaintiff's exclusive agency contract with Bue was in effect. The individual defendant, Frank G. Binswanger, Jr., is president of such corporation, and the defendant Richard Calhoun is a salesman in its employ.

After a trial without a jury Common Pleas Court No. 2 of Philadelphia rendered a decision in favor of the plaintiff against the defendant, Binswanger, individually, and the Binswanger Corporation; and assessed damages in the sum of $4,380, which included $2,190 as compensation for loss of commission and $2,190 punitive damages. The court found in favor of

[ 212 Pa. Super. Page 353]

    defendant Calhoun against the plaintiff. Upon the dismissal of their exceptions to the verdict of the court because of a divided court en banc consisting of the trial judge and one other, defendants Binswanger and Binswanger Corporation appealed.

The undisputed facts of the case are that the plaintiff was the exclusive agent of Bue, Inc., for the sale or rental of the Fourth and Willow Street premises. The written agreement, dated February 4, 1964 stated, inter alia, that until the "withdrawal of this agency, as hereinafter provided, no one shall offer said property for rent or sale but Lanard & Axilbund, Inc., and if leased or sold prior to the withdrawal of this agency, no matter by whom it shall be leased or sold, exclusive of the firms listed below, we agree to pay Lanard & Axilbund, Inc., a commission in accordance with the Schedule of Commissions as adopted by the Philadelphia Board of Realtors."

The schedule of commissions for the Philadelphia Board of Realtors set forth various rates based on a percentage of the rents or sale price received from the property, and recognized that there might be another broker involved who cooperated in closing a transaction. The commissions for a lease where the realtor did not collect the rents were five per cent of the rent for the first year, four per cent of the rent for the second year, and three per cent of the rent for the remainder of the term, payable at the execution of the lease. In the event there was a cooperating broker, fifty per cent of the net commissions received by the original realtor were suggested as the proper amount to be paid to such cooperating broker.

In July or August of 1964 defendant Calhoun telephoned Mr. Arthur Balsam, a vice president of plaintiff, and advised him that he had a prospect to whom he wished to ...


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