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DIXON v. ANDREW TILE AND MANUFACTURING CORPORATION (02/02/76)

decided: February 2, 1976.

DIXON, APPELLANT,
v.
ANDREW TILE AND MANUFACTURING CORPORATION



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1971, No. 1717, in case of Theodore R. Dixon v. Andrew Tile and Manufacturing Corporation, a Pennsylvania corporation.

COUNSEL

Paul J. Weinheimer, for appellant.

John C. Mohan, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Price, J., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 238 Pa. Super. Page 277]

This appeal is taken from the order of the lower court granting appellee's motion for a new trial. Appellant contends that the lower court abused its discretion when it found that the jury verdict was against the weight of the evidence.

Appellant, Theodore R. Dixon, brought suit in assumpsit against appellee, Andrew Tile and Manufacturing Corporation, based on an alleged oral contract for real estate commissions. A jury trial began on April 4, 1973, and on April 11, 1973, the jury returned a verdict in favor of Dixon in the amount of $17,000. Motions for a new trial and judgment n.o.v. were filed by the appellee on April 16, 1973. The lower court denied the motion for judgment n.o.v., but granted the motion for a new trial. This appeal followed.*fn1

[ 238 Pa. Super. Page 278]

In March, 1970, Anthony Tartaglione, President of the appellee-company, was approached by one of appellant's employees regarding the possibility of producing a buyer for appellee's property located at 2250 Babcock Boulevard, Ross Township, Allegheny County. Appellant's right to the commission is based on the two alleged contracts which resulted from this initial meeting: the contract for the commissions and the contract for the sale of the property.

The following testimony concerning the contract for commissions was produced at trial: The amount of the commission was to be $15,000 (10% of the sales price of $150,000); appellee was to pay appellant one-third of the commission at the closing and the remainder of the commission at the rate of $1000 a year while an existing mortgage on the premises was paid off; if the mortgage was paid off earlier then the balance of the commission would be accelerated and would become payable at that

[ 238 Pa. Super. Page 279]

    time; if the purchaser were to default, then the obligation to pay the remainder of the commission would terminate. A written memorandum of this commission agreement was prepared, but never executed.

The testimony of both parties regarding the contract for the sale of the property was consistent in some respects, and inconsistent in others. Both parties agreed that the contract was to be an installment land contract. Initially, the appellee demanded $30,000 down, and $120,000 in installments over 20 years at 7%. During the ensuing negotiations, the parties agreed to reduce the downpayment to $20,000 and to have the balance paid in installments over 15 years at 7%. The inconsistencies in the testimony related to whether the contract was to be recorded. The appellant presented testimony that the parties agreed to record the contract, but that the purchaser was willing to buy the property whether or not the contract was recorded. On the other hand, ...


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