Appeal from judgment of Court of Common Pleas of Montgomery County, No. 68-9866, in case of White Realty and Insurance Agency Company v. Joseph A. Moreland et ux.
H. Kenneth Butera, with him Huganir, Butera and Detwiler, for appellants.
Harold T. Commons, Jr., with him Semisch and Commons, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J.
[ 215 Pa. Super. Page 425]
Plaintiff-appellee, White Realty and Insurance Agency Company (White), in an action of assumpsit based on an oral contract, sought to recover from the appellants-defendants, Joseph A. Moreland et ux., a commission for the sale of the Morelands' real estate in Montgomery County, Pennsylvania. Judgment on the pleadings was rendered in White's favor for the amount claimed by White, $2,670, and this appeal followed.
In its complaint, White alleged, "5. On or about May 1966, the defendants, orally, employed White Realty and Insurance Agency Company to procure a purchaser for the property of the defendants. . . ." and "6. By the terms of said agreement the defendants agreed to pay plaintiff 6 per cent of the sale price of the said premises, which sales price was to be a minimum of $44,500.00." A copy of an agreement of sale of the property, for $44,500, dated May 26, 1966, signed by the Morelands and John J. Stein, as purchaser, was attached to the complaint as Exhibit A.
[ 215 Pa. Super. Page 426]
White alleged that it had presented this agreement to the defendants and claimed a commission of $2,670. In their answer the defendants admitted those allegations. The agreement of sale contained the following controversial provision. "Sellers warrant that the said location is zoned commercial at the time of final settlement." In Exhibit A, situated below the agreement of sale and the signatures of Stein and the Morelands affixed thereto, is a writing, which reads, "Seller hereby agrees to pay, at or prior to the time of settlement hereunder, a sales commission, in the sum of Two Thousand Six Hundred Seventy ($2670.00) Dollars to White Realty & Insurance Agency Company for services rendered in effecting this sale."
Appellants' defense is based on two facts which they alleged in New Matter and which were not denied by White's Reply. First, the property was not zoned commercial at the time of final settlement and the purchaser refused to settle for that reason. Second, White prepared the agreement of sale. Their primary contention is that the sales agreement negotiated by the broker, White, was a conditional contract because of the provision as to zoning contained therein and, since the contingency did not occur, the broker's right to a commission expired. They further argue that, if there is any ambiguity in the written agreement, it must be construed most strongly against White, which prepared it.
On the present state of the record before us, we do not believe it is material to the issue that White drafted the agreement of sale, except to establish the fact that it knew of its contents. Not only is White not a party to the agreement of sale, but it also brought its action in assumpsit exclusively on an oral contract, thereby excluding the theory of its being a third party beneficiary to the writing in Exhibit A referring to its commission. Such provision is not a part of the agreement
[ 215 Pa. Super. Page 427]
between the Morelands and Stein since it was not signed by the latter. Moreover, White never amended paragraph 5 of its complaint, supra, even ...