Opinion
November 19, 1949.
January 12, 1950.
Real estate brokers — Commissions — When earned — Transfer of title as condition precedent — Waiver — Vendor and vendee — Action by vendor to enforce performance.
1. A real estate broker earns his commission when he procures a purchaser with whom the owner enters into an agreement for the sale and purchase of the property.
2. Where a purchaser of real property fails to perform his part of the contract, the vendor has the right of action against him to enforce performance.
3. Where it appeared that plaintiff, a real estate broker, secured a purchaser who entered into an agreement with defendant, the owner; that, subsequently, plaintiff wrote to defendant stating the understanding that plaintiff was to collect from the purchaser a stated amount for a specified number of months and remit to the owner, at which time title would be transferred and the deed delivered to the purchaser, and that its commissions would not be due until transfer of title; that the purchaser defaulted in his payments; and that defendant retained the payments already made and secured a release from the purchaser so that the property might be sold to another person; it was Held that the evidence sustained findings that the parties had waived the requirement, if it was a condition precedent, that there would be no fee paid plaintiff until transfer of title.
Appeals — Review — Findings of fact — Trial judge without jury.
4. Findings of fact by a trial judge, sitting without a jury. have the force and effect of the verdict of a jury.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS and FINE, JJ. (ARNOLD, J., absent.)
Appeal, No. 177, April T., 1949, from judgment of County Court of Allegheny County, 1944, No. A-407, in case of Realty Investments Incorporated v. William Harris et al. Judgment affirmed.
Assumpsit. Before LENCHER, P.J., without a jury.
Verdict for plaintiff and judgment entered thereon. Defendants appealed.
Warren H. Van Kirk, with him C.D. Diamantopulos, for appellants.
Louis Rosenfield, for appellee.
Argued November 19, 1949.
This assumpsit action to recover a real estate commission was heard by a court without a jury. The trial judge found for the plaintiff, his findings were sustained by the court en banc, and the defendant took this appeal.
The facts are not in dispute. The plaintiff, a duly licensed real estate broker, was employed by the defendant to sell certain real estate owned by it in Pittsburgh for the price of $3,000.00, on which the plaintiff was to be paid the usual brokerage commission of 5 percent. On October 14, 1942, the plaintiff secured a purchaser for the property, one Norflet, who entered into an agreement with the defendant for the purchase of the property.
The plaintiff had earned its commission when it had procured a purchaser with whom the defendant entered into an agreement for the sale and purchase of the property. Advance Realty Co. v. McLeod, 84 Pa. Super. 558.
The defendant, however, denies liability for the commission on the basis of a letter to it written by the plaintiff under date of October 17, 1942, which reads in part as follows: "It is our understanding that we are to collect . . . $100.00 monthly from James I. Norflet and remit same to your association for a period of eight months, at which time title will be transferred and the deed will be delivered to the purchaser. Our commission will not be due until transfer of title." Under the terms of the purchase agreement, Norflet paid a total of $590.00 to the plaintiff, which it remitted to the defendant, and then Norflet defaulted in further payments. It is the contention of the defendant that by the letter of October 17 ("our commission will not be due until transfer of title") the plaintiff waived the commission that it had earned when the defendant entered into the agreement with Norflet, unless title was transferred to the latter after he had paid $800.00.
Assuming, arguendo, that transfer of title to Norflet was a condition precedent to payment of plaintiff's commission, this condition — which would be solely for the benefit of the defendant — was rendered inoperative by the defendant. When Norflet, the purchaser, did not perform his part of the contract, the defendant had a right of action against him to enforce performance. Advance Realty Co. v. McLeod, 84 Pa. Super. 558, supra. However, it elected to treat with Norflet on another basis: retain the payments already made, secure a release from him and sell the property to a third party. Furthermore, it might be added that at the request of the defendant, the plaintiff secured the release from Norflet so that the property might be sold to another person.
The trial judge found that "the parties waived the requirement that there would be no fee paid plaintiffs until transfer of title", and his findings of fact have the force and effect of a verdict of a jury. Perletto v. Lancaster Ave. Bldg. Loan Assn., 353 Pa. 366, 45 A.2d 10; Jann v. Linton's Lunch, 150 Pa. Super. 653, 29 A.2d 219.
Judgment affirmed.