McNelis v. Ellwanger

72 Pa. Super. 35, 1919 Pa. Super. LEXIS 240

• Court: Superior Court of Pennsylvania
• Decided: July 17, 1919
• Docket: Appeal, No. 114
• Status: Published

Opinion

Opinion by

Porter, J.,

The plaintiff is a duly licensed real estate broker and brings this action to recover commissions for Ms services as a broker in connection with a sale of real estate by the defendants to Morris L. Miller. He recovered a verdict and judgment in the court below and the defendants appeal. The only issue of fact involved at the trial was as to the employment of the plaintiff by the defendants. The evidence was altogether sufficient to warrant a finding that the efforts of the plaintiff were the direct, efficient and procuring cause of the opening of the negotiations, between the defendants and Mr. Miller, which resulted in the sale of the property. Upon the question of whether the defendants had employed the plaintiff the evidence was conflicting, and if we were called upon to exercise the function of jurors we might be inclined to the opinion that the weight of it was against the contention of the plaintiff. The testimony of the plaintiff, if believed, warranted a finding that the defendant Lentz had said to him before the transaction was closed that he would pay a commission, but that after the transaction was closed and the settlement made, he refused to pay the commission, alleging .that the plaintiff had represented Mr. Miller, the purchaser. His testimony would also have warranted a finding that he had had several conversations with the defendant Ellwanger, and that the latter had authorized him to find a buyer not only for the property in question but for another property of which he was the sole owner. This testimony was flatly contradicted by both of the defendants, but the credibility of the witnesses was for the jury to determine and the court did not err in refusing a binding instruction in favor of the defendants, nor in overruling their motion for judgment non obstante veredicto. There was no eyidence which would have warranted a finding that the plaintiff was in the matter acting as the agent of Mr. Miller or was to receive any compensation from the latter for his services as a broker.

The court permitted counsel for plaintiff to ask the defendant Ellwanger whether he had paid any commission to anybody other than the plaintiff for selling the ground to Miller, and the witness testified that he had not. The admission of this testimony worked no injury to defendants’ case, as the defendant Lentz had already testified, without any objection, to the same effect, and the entire testimony in the case had already clearly established that the defendants were now asserting that they acted for themselves in the entire transaction and had npt authorized any agent to represent them. The court did not err in charging the jury that if the defendants had employed the plaintiff the latter was entitled to the usual commission with interest thereon from the date of his demand for payment, after the settlement had been made and the transaction closed. The appellants contend that, the amount being unliquidated the plaintiff is not entitled to recover interest on the amount which became due him. This is an action on the contract, when the services had been performed and the relation of employer and employee terminated, the plaintiff demanded his compensation and the defendants refused to pay. The former was at once entitled to be paid for the services which he had rendered. It was the duty of the defendants to pay, and, having failed to do so, they were liable for interest on the amount due and unpaid: Com. v. Terry, 11 Pa. Superior Ct. 547.

The judgment is affirmed.