Addison v. Wanamaker

• Decision Date: 18 April 1898
• Docket Number: 73
• Citation: 185 Pa. 536,39 A. 1111
• Parties: Arthur D. Addison, Appellant, v. John Wanamaker
• Court: Pennsylvania Supreme Court

39 A. 1111

185 Pa. 536

Arthur D. Addison, Appellant, v. John Wanamaker

No. 73

Supreme Court of Pennsylvania

April 18, 1898

Argued April 6, 1898

Appeal, No. 73, Jan. T., 1898, by plaintiff, from order of C.P. No. 2, Phila. Co., Sept. T., 1895, No. 588, dismissing exceptions to report of referee. Affirmed.

Exceptions to report of referee, J. Hampton Barnes, Esq.

The referee reported as follows:

Prior to February 3, 1893, the plaintiff, Arthur D. Addison, a real estate broker, licensed to do business in the city of Washington, D.C., called upon the defendant, John Wanamaker the owner of a residence building at No. 1731 I street Northwest, Washington, D.C., and inquired if the said residence was for sale, and solicited the right to sell it as defendant's agent. At this interview the defendant told the plaintiff that he had not determined to sell the house although circumstances might occur which would induce him to sell; that he would not put the house in the market for sale that under no circumstances would he put the house in the hands of any agent to sell, nor would he employ any agent to sell it, and that if he did sell it, he would deal with the principal.

This was the only interview between the plaintiff and the defendant upon the subject.

Upon February 3, 1893, the plaintiff wrote the defendant as follows:

"Some weeks ago I called on you to ask if you would sell your house on I street and was informed that you had not decided what you would do with it. If you have decided to sell or rent, I would be glad to hear from you as I know of two parties who are anxious to purchase large houses in this city, and yours might suit one of them. An early reply is requested."

To which letter the defendant on February 6, 1893, replied as follows:

"Answering your letter of February 3d, asking whether my house is for sale, I beg to say that I have determined not to put it upon the market, and have no price for it. I am willing to entertain a reasonable offer from a bona fide satisfactory purchaser."

Upon February 11, 1893, the plaintiff wrote the defendant as follows:

"Your favor of the 6th inst. duly received. One of my clients, Bishop Hurst, has purchased a house, but the other one referred to, Mr. Howland of New York, is anxious to inspect your property on Wednesday next if you will grant permission. If you will allow me to show your property on Wednesday, please be good enough to name the hour and oblige."

To which the defendant replied, on February 13, 1893, as follows:

"Answering your note of the 11th, received today, saying that you would like to have permission to show my house to a Mr. Howland, and asking for a time, I beg to say that, without putting my house into your hands to sell, I am quite willing that you should show it to your friend on Wednesday afternoon at three o'clock."

After the receipt of the last letter the plaintiff showed the house to Mr. S. S. Howland, and on February 27, 1893, wrote the defendant as follows:

"I have been requested by Mr. Howland to ask you to put a price on your residence in this city, and also to ask if you would sell your gallery with the house. An early answer will greatly oblige."

To which the defendant replied, on March 2, 1893, as follows:

"Answering your letter of February 27th; I am not disposed to sell my pictures, and I do not wish to put my house in the market; though I should entertain the offer of a reasonable price for it."

The defendant left Washington a few days after March 2, 1893, having had no other communication with the plaintiff between the said second day of March, 1893, and the time of his departure.

Prior to his departure he placed his said house in charge of A. D. Hazen, a friend and associate in the department of the United States government of which the defendant had been the head until March 4, 1893, and gave to him authority to sell the said house at the price of $90,000. Subsequent to March 2, 1893, the plaintiff obtained from Mr. Howland an offer for the defendant's house. He communicated the offer by a telegram to the defendant who was in Mexico. The defendant telegraphed Mr. Hazen that the plaintiff had submitted an offer, and in consequence of this communication the plaintiff had an interview with Mr. Hazen in regard to it. The offer was refused, a second offer was made and refused, and finally an offer of $90,000 made by Mr. Howland, was submitted by the plaintiff and accepted by Mr. Hazen, acting for the defendant. When the first and second offers were made the plaintiff desired that they should be submitted to the defendant, but Mr. Hazen said it was useless to do so, as he was bound by his instructions to accept no sum less than $90,000. When the offer of $90,000 was made and before it was accepted the plaintiff said to Mr. Hazen that, of course, he would expect the usual commission of two and one half per cent, and asked him to notify the defendant to that effect. Mr. Hazen replied that he had no authority to discuss the question of commission, and that it would have to be settled with Mr. Wanamaker. Mr. Hazen did not communicate the plaintiff's demand for commission to the defendant. The offer of $90,000 having been accepted, the terms of settlement were agreed upon, and the sum of $5,000 was paid on April 15, 1893, on account of the consideration, by a check of the purchaser, Mr. Howland, to the order of the defendant, and delivered to Mr. Nevin, a representative of the defendant, at a meeting at the plaintiff's office in Washington, at which there were present, the plaintiff, Mr. Nevin, Mr. Howland and Mr. Hazen. Subsequently, the plaintiff ordered a title policy of insurance upon the property, and caused the deed to be prepared, and upon May 8, 1893, inquired of Mr. Nevin by letter, at what time the defendant would sign the deed, and on May 12, 1893, wrote Mr. Nevin as follows:

"Your favor of the 9th inst. duly received. I have the deed and will send it to you in a few days. Of course Mr. Wanamaker knows that he will owe me 2 1/2 % commission for making the sale, as I notified his friend, Genl. Hazen, to that effect when the offer was first made."

To which Mr. Nevin replied on May 13, 1893, as follows:

"I am in receipt of your favor of the 12th inst. and whenever you are ready to forward the deed, it can be sent to me and I will see that it is executed. Regarding the question of commissions, I have nothing to do with this part of the transaction and therefore do not know anything about it."

On May 20, 1893, the plaintiff wrote Mr. Nevin as follows:

"Inclosed please find deed from Mr. and Mrs. Wanamaker to Mr. S. S. Howland, which please be kind enough to have executed. If Mr. Wanamaker is willing to have me make the transfer for him I can receive certified check and give the deed to Mr. Howland, which I always do in making a sale. It is usual, first to deduct the commission, but if Mr. Wanamaker prefers sending me his check for the amount, $2,250, I will send the $35,000 check to him."

Mr. Nevin did not communicate the contents of this letter to the defendant prior to the settlement and delivery of the deed. The deed was delivered on May 29, 1893, at Washington, and the balance of the cash payment of purchase money paid by check of Mr. Howland to order of the defendant, delivered to Mr. Nevin, and on that day, May 29, 1893, the plaintiff wrote a letter to the defendant demanding the payment of his commission of two and one half per cent, to which, on June 2, 1893, the defendant replied by letter denying any liability to him for a commission.

It was conceded by the plaintiff that there was no express contract made with him by the defendant to negotiate for a sale of his house, nor any express agreement to pay him a commission for the sale. The evidence showed that two and one half per cent is the usual commission for sale such as in this case, and that it is the usual custom for the seller to pay the commission for a sale by a broker.

The plaintiff contends that the correspondence above set out and the subsequent negotiations and sale of the house, constitute an implied contract to pay him the usual commission, and that the acceptance of Mr. Howland's offer and the subsequent acts of the plaintiff to the close of the transaction constituted a ratification of the plaintiff's agency for the defendant.

It is clear that a contract to pay a broker a commission for a sale may be implied from the circumstances of the case, and that such a contract may be created by acceptance of services rendered: Mechem on Agency, sec. 937; Fenn v Dickey, 178 Pa. 258; Sibbald v. Bethlehem Iron Co., 83 N.Y. 378. But an employment of the agent must be affirmatively established by such an implied contract...