No. 145 April Term 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, civil Division, No. GD 76-06001.
James A. Lewis, Pittsburgh, for appellant.
Paul F. Laughlin, Pittsburgh, for appellees.
Cercone, President Judge, and Montgomery and Lipez, JJ.
[ 281 Pa. Super. Page 72]
This is an appeal from a judgment of the trial court awarding appellant $50,000 for breach of contract without interest and costs.
Appellant Gold and Company, Inc. is a Pennsylvania licensed real estate broker. Gold was contacted by Tinkham, a real estate broker licensed in another state, and the two agreed to cooperate in locating and negotiating the purchase of property suitable for Redstone, a client of Tinkham. Gold, through its licensed salesman, Lebovitz, located suitable property, which was owned by appellee Western Pennsylvania Ltd., and introduced the principals of Western Pennsylvania Ltd. to Tinkham. During the initial discussions among Lebovitz, Tinkham and Western Pennsylvania Ltd., a six per cent broker's commission was discussed as being reasonable, but was never firmly agreed upon. Because of a personality clash, Gold withdrew from active negotiation of the transaction. With some assistance from Tinkham, Western Pennsylvania Ltd. and Redstone continued the negotiations. In order to facilitate agreement, Tinkham, without the prior consent of Gold, agreed to
[ 281 Pa. Super. Page 73]
reduce the brokers' commission on the transaction from six per cent, or approximately $80,000, to $50,000. Thereafter, the principals executed a lease agreement with purchase option.
Tinkham and Gold being unable to agree as to how to divide the commission, Gold brought the present breach of contract action against the principals seeking the recovery of a broker's commission based either on six per cent of the purchase price or upon "usual and customary fees." Western Pennsylvania Ltd. admitted liability for the $50,000 commission and denied that any further amounts were due.
The lower court concluded that: 1) Tinkham and Gold had entered into a joint venture;*fn1 and 2) there was a specific agreement between Tinkham and Western Pennsylvania Ltd., which agreement was binding on Gold, whereby the joint venture agreed to accept as a real estate commission the sum of $50,000. Based on that finding of an express contract, the court then entered an order awarding Gold, as one of the joint venturers, and as trustee for the joint venture, the sum of $50,000. The lower court declined to award prejudgment interest, and ordered each party to bear its own costs.
In this appeal, Gold contends that the lower court erred: 1) in finding that Tinkham had authority to bind Gold to a $50,000 commission in light of the fact that Tinkham was not a real estate broker licensed in the Commonwealth of Pennsylvania; 2) in finding that Western Pennsylvania's agreement to pay a six per cent commission was conditional; 3) in finding that Tinkham unconditionally agreed to accept a reduction of commission and that Gold was bound thereby; 4) ...