Alford v. Raschiatore

• Decision Date: 14 January 1949
• Citation: 163 Pa.Super. 635,63 A.2d 366
• Parties: Alford v. Raschiatore, Appellant
• Court: Pennsylvania Superior Court

63 A.2d 366

163 Pa.Super. 635

Alford v. Raschiatore, Appellant

Superior Court of Pennsylvania

January 14, 1949

Argued October 4, 1948

Appeal, No. 149, Oct. T., 1948, from judgment of Common Pleas, Chester Co., Feb. T., 1947, No. 36, in case of John S Alford v. Gaetano Raschiatore.

Assumpsit. Before Windle, P. J.

Verdict for plaintiff and judgment entered thereon. Defendant appealed.

Harold K. Wood, with him Henry Temin and Reilly &amp Wood, for appellant.

Thomas Lack, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Fine, JJ.

OPINION

DITHRICH, J.

Plaintiff appellee, who has never been licensed as a real estate broker in Pennsylvania, sued for and recovered a sum equivalent to a real estate commission for procuring a purchaser for a restaurant property put up for sale by the defendant. Defendant moved for judgment n. o. v. and for a new trial, and from the refusal of his motions he has brought this appeal.

While practically conceding that he does not come within any of the groups excluded from the operation of the Real Estate Brokers License Act of May 1, 1929, P. L. 1216, 63 PS 431, as amended, the chief burden of his argument is that he did not "negotiate" a sale within the meaning of the Act. Section 2 of the Act provides, in part: "The term 'real estate broker' shall include all persons . . . who, for another and for a fee, commission, or other valuable consideration, shall sell, exchange, purchase, or rent, or shall negotiate the sale, exchange, purchase or rental, or shall offer or attempt to negotiate the sale, exchange, purchase, or rental . . . of any real estate." (Italics supplied.)

The facts bearing on the point thus raised, considered in a light most favorable to plaintiff because of the verdict, are that a real estate agent, who had been trying without success to find a purchaser for the property, said to the owner, "My friend here, John, [Alford] gets around a good bit and might be able to find you someone that would be interested in the place." Appellant said to Alford: "You find me a buyer. Bring me someone. I want to sell it . . . if you bring me buyer . . . I pay you the same as I pay this man [putting his hand on the real estate agent's shoulder] or anybody else." Within a few days plaintiff took one Anthony Dundee, manager of the Palm Garden Restaurant and Cafe in Wilmington, Delaware, who plaintiff learned from a real estate agent was looking for a place in Pennsylvania, to appellant's place of business and introduced him to appellant. Dundee subsequently purchased the property for the sum of $ 21,000, which was $ 1,000 less than the asking price. Plaintiff then demanded and later brought suit for the usual real estate commission of five per cent, which he recovered at the hands of the jury and which the court subsequently refused to set aside.

Defendant denied having entered into any agreement with plaintiff, but, in view of the finding of the jury which entitles plaintiff to the benefit of every fact and every inference of fact reasonably to be deduced from the evidence, we must consider that the agreement, substantially as testified to by plaintiff, was entered into. The question, then, is: Is the agreement enforceable? As we have stated, supra, the chief burden of plaintiff's argument is that he did not act as a real estate broker, since he did not negotiate the sale, and the learned court below in its opinion refusing defendant's motion for judgment n. o. v. said the verdict of the jury which determined that plaintiff had not "negotiated" the sale, was "amply supported" by the language of this Court in Werner v. Hendricks , 121 Pa.Super. 46, 48, 49, 182 A. 748. There is no denying the fact that the part played by the plaintiff in this transaction would not measure up to the definition of "negotiation" adopted by the Court in that opinion. But there the plaintiff was seeking to establish that the sale of a newspaper route or agency had been procured by his efforts and he contended that "as the court below found as a fact he had called the attention of . . . [the subsequent purchaser] to the route on three different occasions, he is entitled to recover even though he had not been the procuring cause of the sale because this finding of fact established that he had been 'negotiating' with the purchaser and, therefore, was within the terms of the contract." But we said: "In this connection we must consider a comment by the court in its discussion that 'there was nothing more than an offer on the part of the plaintiff and an immediate refusal on the part of Conard on the ground that the route was not suitably located for his purposes.'" This Court was not there called upon to determine the meaning of the word "negotiate" as used in the Real Estate Brokers License Act.

But in Verona v. Schenley Farms Co., 312 Pa. 57, 167 A. 317, which squarely rules this case, the Supreme Court, in passing upon plaintiff's averment that he was not "'engaged in the real estate business'" and had merely agreed with defendant "'to use his best efforts in presenting to the [commissioners] the special, particular and peculiar advantages of [defendant's land] . . . as being the most fitting, suitable and desirable location for the auditorium . . . then under consideration, as compared with other properties which were being offered and considered by the said County Commissioners,'" said on page 61:

"Plaintiff's averment, in his reply, that, in performing the contract, he was not 'engaged in the real estate business,' is mere denial of what the statute defines as 'acting in the capacity of a real estate broker,' a denial which, therefore, amounts to nothing. We all agree that the described negotiation with the county commissioners, in the ordinary and accepted definition of the word 'negotiate,' was the work of a real estate broker within the meaning of the statute. The legislature was of course familiar with the great variety of real estate brokerage contracts made from time to time, and the definition of real estate broker must be understood in the light of the common knowledge on the subject; . . ."

"The common knowledge on the subject," of which the Court must take judicial notice, is that in probably the bulk of real estate transactions conducted by real estate agents or brokers, the agent's part amounts to little more than finding and introducing to a party who is ready and willing to sell, a prospect who is ready, willing and able to buy.

We cannot give to the word "negotiate," in the sense intended by the Legislature, the strict construction contended for by appellee. If we should so do, it would exclude from the regulatory purpose of the Act a great percentage of brokers and salesmen who normally do no more than acquaint prospective buyers and sellers with the location and price of available property, and who annually comply with the licensing feature of the Act in the belief that they are covered by it.

In giving the word "negotiate" a broad interpretation we are in accord with the courts in sister states which have construed similar real estate brokers...