Riskin v. BALTIMORE & OHIO RAILROAD COMPANY

• Decision Date: 26 October 1964
• Docket Number: Civ. A. No. 855-61.
• Citation: 234 F. Supp. 979
• Parties: Aaron A. RISKIN, Plaintiff, v. BALTIMORE & OHIO RAILROAD COMPANY, a corporation, Henry Lee, and Capitol City Liquor Company, Inc., a corporation, Defendants.
• Court: U.S. District Court — District of Columbia

234 F. Supp. 979

Aaron A. RISKIN, Plaintiff, v. BALTIMORE & OHIO RAILROAD COMPANY, a corporation, Henry Lee, and Capitol City Liquor Company, Inc., a corporation, Defendants.

Civ. A. No. 855-61.

United States District Court District of Columbia.

October 26, 1964.

Herman Miller, Washington, D. C., for plaintiff.

Laidler B. Mackall, Steptoe & Johnson, Washington, D. C., for defendant Baltimore & Ohio R. Co.

Philip P. Marenberg, Washington, D. C., for defendants Capitol City Liquor Co., Inc., and Henry Lee.

KEECH, District Judge.

This is an action in three counts to recover a broker's commission. The first is based on an alleged contract with the Baltimore & Ohio Railroad Company to sell a certain parcel of land, known to the Railroad as the University Tract. The second and third counts lie in tort, alleging interference with plaintiff's rights under the said contract and a conspiracy to deprive plaintiff of his commission.

Plaintiff is a licensed real estate broker in the District of Columbia. He was accustomed to passing the University Tract driving to and from work in 1959. In March of that year, plaintiff discovered through his plat books who the owner of this tract was, and accordingly contacted the Baltimore & Ohio Railroad Company. At this time he was informed by a Mr. Bauer, a representative of the Railroad, that the property was not for sale. In December of 1959, he contacted the Railroad again and was informed by a Mr. Pluebell that the property would be available to a buyer who could meet the qualifications of the Railroad. In January of 1960, plaintiff learned of a party who was looking for a site for a warehouse with railroad access. Plaintiff contacted such party (Mr. Lee, President of the Capitol City Liquor Company, Inc.) and took him and his son to see the property. Mr. Lee displayed considerable interest and the next day, at Lee's request, plaintiff supplied him with a plat of the tract copied out of plaintiff's plat book. Lee then announced that he wanted to make an offer, and plaintiff arranged a meeting at Mr. Pluebell's office. At this meeting, the court finds, it was made abundantly clear that the parties (i. e., the prospective buyer and the representative of the Railroad) already knew and had been dealing with each other. Except for a delivery of some documents from the Lees to the Baltimore & Ohio Railroad Company which the plaintiff claims to have made, arranging this meeting was the last act of the plaintiff with regard to the sale of this property. Thereafter Lee negotiated directly with the Railroad, until a contract was signed on August 16, 1960.

During trial, the action against Capitol City Liquor Company, Inc., was dismissed by consent of the parties.

Three issues are presented by this case, which the court will consider in inverse order: (1) Did Mr. Pluebell have authority to contract with plaintiff to sell property for the Baltimore & Ohio Railroad Company; (2) was a contract entered into with respect to the University Tract; and (3) was plaintiff in fact the procuring cause of the sale of that Tract?

The record shows that the Lees had been dealing with the Baltimore & Ohio Railroad Company for approximately six months prior to their inspection of the University Tract with plaintiff, with a view to locating a site for a larger warehouse along the Railroad. Mr. Pluebell had taken the Lees to see several properties, belonging, respectively, to the Railroad and to others. The testimony shows that, when plaintiff took Mr. Lee and his son to Mr. Pluebell's office, the Lees and Mr. Pluebell were familiar with one another already and the visit immediately took on the aspect of a social gathering. Thus plaintiff was aware, as of that time, that the parties had been negotiating previously with each other. From this time on, plaintiff was relatively or completely out of the picture.

It is true that a broker is entitled to his commission where he has brought the parties together, even though he is precluded from the remaining negotiations. Clark v. Morris, 30 App.D.C. 553, 556. The mere fact that the parties had previously dealt with one another and discussed the purchase of other properties would not alter the broker's rights, provided he were the predominant factor in bringing the two parties together culminating in the sale of this particular property. Nor would the fact that the parties had previously negotiated with regard to this particular property deprive the broker of his commission, if his efforts were predominant in the resumption and completion of fruitful negotiations.

Although prior to the meeting arranged by plaintiff the Lees had been principally interested in smaller properties, the evidence here is not only that the University Tract had been mentioned to them prior to such meeting, but that, as testified by one witness, a plat thereof had been shown to them. Moreover, negotiations with the Lees cannot be said to have broken off; rather, they appear to have been undergoing a slow but steady development. While not dwelling on any specific property, discussions had been held regularly with regard to available properties, the needs of the Lees, and the traffic which they might generate for the Railroad. Thus it cannot be said that the plaintiff introduced the Lees either generally or in respect to this property in particular; nor can it be said that plaintiff was responsible for repairing broken-down negotiations. Plaintiff's own conduct is hardly consistent with a genuine belief that he had produced these prospective purchasers. A broker claiming a $27,000 commission does not step aside to let negotiations take what course they will, following a meeting at which interest is expressed, with little or no further action. Such conduct could only reassure the parties that the broker's intervention had indeed been gratuitous. A broker is not entitled to a commission merely by finding a purchaser; he must be the direct and proximate cause of the sale. First Nat. Realty Corp. v. Blackwell Realty Co., 77 A.2d 319 (D.C.Mun.App.1950).

Furthermore, before a broker can recover his commission, even if he is the procuring cause, he must show that he was commissioned to do so by the party sought to be charged. Eggleton v. Vaughn, 45 A.2d 362 (D.C.Mun.App. 1946). Otherwise he is a mere interloper. In the instant case, plaintiff relies on a statement by Mr. Pluebell, District Freight Agent for the Baltimore & Ohio...