Appeal from the Judgment of the Court of Common Pleas of York County, Civil at No. 86-U-4391-01.
James Greenberg, York, for appellant.
Daniel W. Shoemaker, York, for appellee.
Rowley, Popovich and Johnson, JJ.
[ 386 Pa. Super. Page 375]
This is an appeal from an order of the Court of Common Pleas of York County denying the appellants' motions for judgment n.o.v. and/or a new trial after a verdict in favor of the appellees on their claim for unpaid commissions due following the sale of the appellants' property. We reverse and remand for a new trial.
The record reveals that two lawsuits arising from the same set of facts were combined for trial. The first, out of which this appeal arises, involved the appellees' claim for their commission for providing a ready, willing and able buyer for The Dock of Hellam, Inc. which was wholly owned by the appellants. The second suit involved John and Mary Wagner's claim for breach of a valid oral contract to purchase the stock of the corporation.*fn1 The appellants allegedly breached the contract by selling the business to another individual. The Wagners ultimately purchased the business from the other buyer at a substantially higher cost.
Testimony at trial revealed that the appellants listed their business for sale with Century 21-Heritage Realty. The original six-month exclusive listing agreement was in the name of The Dock of Hellam, Inc. and was signed by William Bair as President of the corporation. However, Sterling Kline, the realtor's agent, testified that the appellants said the business could be sold either as a sale of assets by the corporation or as a sale of their individual stock. The exclusive listing contract expired prior to the sale of the property. While the appellants did not renew the contract, they did allow Kline to continue his efforts to sell the property.
Thereafter, Kline contacted the Wagners who had previously expressed an interest in the property under the terms of the original listing contract. After a discussion with the
[ 386 Pa. Super. Page 376]
Wagners, Kline drew up a specific sales proposal which required the appellants to finance most of the purchase price. Kline then advised the appellants that the Wagners would accept a proposal similar to the one he had drafted and requested authority to submit the proposal to the Wagners. Kline testified that the appellants then authorized the contract in advance if Kline could obtain the Wagners' signatures immediately.
The Wagners accepted the proposal to purchase the business at a price of $175,000. A written sales agreement listing The Dock of Hellam, Inc., as the seller and describing the property as all the business assets of the corporation, including the real estate, liquor license and equipment, was prepared. The appellants were also listed individually as sellers. The Wagners signed the agreement. However, when Kline proffered the agreement to the appellants, they refused to sign and informed Kline that they had already sold the business to another individual. It is important to note that the sales contract provided that it was void unless approved by the sellers within five days.
The appellants' version of the events is somewhat different. The appellants deny authorizing Kline to submit the proposal to the Wagners. The appellants also contend they informed Kline that they would only accept a cash sale and would not accept any proposal whereby they retained any interest in the property.
The appellants first tried to have both actions dismissed by motion for summary judgment alleging a violation of the statute of frauds applicable to the sale of real estate. This motion was denied by the court. The court reasoned that the Wagners had sued the appellants individually contending that the sale was for the stock of the corporation not for the assets, and, therefore, the statute of frauds did not apply. The appellant later alleged that a sale of the stock of a closely-held corporation was also covered by the statute of frauds citing Jennison v. ...