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HOWARD VISSCHER v. ROBERT O'BRIEN AND TERESA O'BRIEN. APPEAL TERESA O'BRIEN (01/18/80)

filed: January 18, 1980.

HOWARD VISSCHER
v.
ROBERT O'BRIEN AND TERESA O'BRIEN. APPEAL OF TERESA O'BRIEN, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT O'BRIEN, DECEASED



No. 2568 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Bradford County, Civil Action - Law, No. 171 October Term, 1976.

COUNSEL

Franklin R. Innes, Towanda, for appellant.

David B. Keeffe, Sayre, for appellees.

Price, Wieand and Van der Voort, JJ.*fn*

Author: Price

[ 274 Pa. Super. Page 379]

The instant appeal is from a verdict in the trial court awarding appellee $15,900 as a broker's fee in the sale of a farm owned by appellant and her deceased husband. Appellant appeals from the order of the trial court dismissing her motions for a new trial or for judgment non obstante veredicto and presents five assignments of error. Finding no merit in these assignments, we affirm.

In or about the spring of 1974, the decedent, Robert O'Brien, entered into an oral agreement with Grant Swingle, a licensed real estate broker and an employee of appellee, authorizing Mr. Swingle to act as broker in attempting to sell a farm located in East Smithfield, Bradford County. The agreement was open ended*fn1 and allegedly provided for a broker's commission of 10%. From the spring of 1974 until May of 1976, Grant Swingle showed the farm to approximately twenty people. During the early part of 1976, Mr. Swingle secured two offers that would have required subdividing the farm into smaller tracts. On May 14, 1976, Mr. O'Brien posted a letter to Grant Swingle stating as follows:

"This is to inform you that I am withdrawing the house, barn, lake, outbuildings and approximately 100 acres lying [ sic ] West of Blakesley Road as for sale, as I have a proposal for that portion and if it is consumated, [ sic ] I will be most satisfied. If for any reason it does not go through I will advise you as to price, terms, and conditions. The two firm offers you submitted are still under consideration and if all goes well we should know if we can go to settlement on them within thirty days. With best regards, Bob and Teresa O'Brien"

Mr. Swingle received this letter five days later on May 19, 1976. The next day, May 20, 1976, he was introduced to

[ 274 Pa. Super. Page 380]

Mrs. Paul Riffle, who expressed an interest in purchasing a farm. On May 21, 1976, Grant Swingle showed the farm to Mrs. Riffle, and that evening telephoned her husband and gave him further information regarding the land and accompanying structures. Thereafter, Mr. Swingle made several unsuccessful attempts to contact Mr. Riffle. After his May 21, 1976 contacts with the Riffles, Grant Swingle telephoned Mr. O'Brien and informed him of his efforts in interesting them in the property. During the same conversation, Mr. O'Brien stated that the negotiations for the farm mentioned in his letter of May 14, 1976, had been unsuccessful. At some unspecified date, the Riffles contacted Lawrence Finn, the attorney for Mr. and Mrs. O'Brien, and an agreement for the sale of the farm was executed on September 24, 1976, in the amount of $159,000.

Upon learning of the sale of the farm to the Riffles, Grant Swingle addressed a letter to Mr. O'Brien on September 30, 1976, informing him that the sale had been consummated through his efforts and requested payment of the ten percent broker's fee. The O'Brien's refused to pay the fee, and on October 25, 1976, appellee filed an action in fraudulent debtor's attachment to prevent the O'Briens from removing $15,900 of the funds to their new residence in South Carolina. The O'Brien's filed a petition to dissolve the attachment, and on May 13, 1977, a stipulation was filed wherein it was stated that pursuant to an agreement prior to the commencement of the suit, the parties had agreed that Lawrence F. Finn would retain $15,900 from the sale in escrow.*fn2 As a result of the stipulation and the retention of the funds by ...


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