Appeal from judgment of Court of Common Pleas of Lancaster County, Sept. T., 1973, No. 6, in case of R. J. Shumaker v. Charles R. Lear and Evelyn G. Lear.
Robert H. Reese, Jr., with him John W. Beyer, and Arnold, Bricker, Beyer & Barnes, for appellants.
Lawrence E. Stengel, and Rengier, Musser & Stengel, submitted a brief for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Hoffman, J., did not participate in the decision of this case.
[ 235 Pa. Super. Page 511]
This is an action brought by a licensed real estate broker to recover a sales commission. Judgment on the pleadings*fn1 was entered in favor of the appellee [hereinafter broker] and against the appellants [hereinafter sellers].
The facts*fn2 reveal that the sellers and the broker entered into an exclusive listing agreement for the sale of their house at a price of $41,900.00. Under the terms of
[ 235 Pa. Super. Page 512]
the listing agreement the sellers employed the broker as their "sole and exclusive agent for the sale of the property at the price and for the terms above mentioned or at any other price or terms which may be mutually agreed upon in writing . . .," and the sellers agreed to pay a commission of six percent of the total selling price.*fn3
The broker procured a prospective purchaser at a price of $40,000.00 and on May 19, 1973, the sellers and the purchaser entered into an agreement of sale. The agreement of sale, however, was expressly subject to the buyer's securing an approved mortgage of specified amount and terms. "Mortgage commitment [sic] to be arranged by June 10, 1973. If this cannot be arranged these agreements become null & void and down payment returned to the buyer in full."*fn4 It is the effect of this clause which forms the focus of the case before us.
The buyer failed to obtain his mortgage by June 10th, the specified date. On June 19th the sellers notified the purchaser and the broker that due to the purchaser's failure to obtain a mortgage commitment the sellers were electing to terminate the agreement. The broker subsequently notified the sellers that settlement would proceed as planned on June 28, 1973. When the sellers failed to proceed to settlement the broker brought this action for his commission. The court below granted judgment on the pleadings in the amount of $2,400.00 plus interest and this appeal followed.
As a general rule a real estate broker becomes entitled to his commission when he procures a purchaser who is ready, willing and able to buy upon the agreed terms. Keys v. Johnson, 68 Pa. 42 (1871). When the broker completes this task his commission has accrued, Walsh v. Turlick, 164 Conn. 75, 316 A.2d 759 ...