Bethlehem Steel Co. v. Dornberg

• Decision Date: 13 November 1919
• Docket Number: 10.
• Parties: BETHLEHEM STEEL CO. v. DORNBERG.
• Court: Maryland Court of Appeals

108 A. 474

135 Md. 121

BETHLEHEM STEEL CO. v. DORNBERG.

No. 10.

Court of Appeals of Maryland

November 13, 1919

Appeal from Baltimore Court of Common Pleas; Robert F. Stanton Judge.

"To be officially reported."

Action by Lee Dornberg against the Bethlehem Steel Company, a body corporate, and others. From a judgment for plaintiff the named defendant appeals. Reversed without new trial.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

Alexander Preston, of Baltimore (R. Contee Rose, of Baltimore, on the brief), for appellant.

Israel B. Brodie, of Baltimore (Harry B. Wolf, of Baltimore, on the brief), for appellee.

STOCKBRIDGE J.

This suit was instituted to recover commissions alleged to be due the plaintiff for services rendered by him as a real estate broker, in connection with the acquisition by the Bethlehem Steel Company of a tract of land on Patapsco Neck from William L. Gray, and which resulted in a verdict in favor of the plaintiff for the sum of $4,500-or 5 per cent. on $90,000-the amount paid by the steel company for the property of Mr. Gray.

The record contains but a single bill of exception, and has reference only to the action of the court in its ruling upon the prayers of the defendant. The questions presented are still further narrowed to the first three prayers of the defendant, all of which were rejected. These involve but two questions of law: First, whether there was evidence in the case legally sufficient to require the submission of the matter in controversy to a jury under the proof offered, and the averments of the declaration; and, second, whether there was such a variance between the declaration and the proof offered by the plaintiff as to require the withdrawal of the case from the consideration of the jury.

The first three counts of the declaration were common counts in assumpsit; the fourth count reads as follows:

"(4) And for that the defendant the Bethlehem Steel Company is a body corporate, and the defendant the Penn-Mary Steel Company is a body corporate, that the defendants and each of them employed the plaintiff to visit various places to confer with various persons and to do other preliminary work in connection with the purchase by the defendants or any of them of a tract of land known as the Gray property on the North Point Road, in Baltimore county, the defendants and each of them agreeing to pay the plaintiff, as compensation 5 per cent. of the purchase price of the said tract; that the plaintiff undertook to render said services and did render such services and expended various sums of money in connection with the performance by him of his part of the contract, and has performed his part of the contract; that, notwithstanding the fact that the defendants and each of them purchased or caused or procured the purchase of said property, the defendants and each of them have failed and refused to pay the plaintiff the agreed compensation of 5 per cent. of the purchase price thereof, although the plaintiff has demanded the same."

The suit as instituted was against three defendants, the Bethlehem Steel Company, the Penn-Mary Steel Company, and Frederick W. Wood. By the instruction of the court granted at the conclusion of the plaintiff's evidence, the jury was directed to render a verdict for the defendants the Penn-Mary Steel Company and Frederick W. Wood, leaving the suit thereafter only as between Mr. Dornberg, as plaintiff, and the Bethlehem Steel Company, as defendant.

The first three counts in the declaration were the common counts in assumpsit, on an implied contract, while the fourth count sets out a specific contract; and it needs no citation of authorities for the proposition that a plaintiff cannot recover in the same suit upon both an implied and express contract. An express contract being thus alleged, the only consideration is whether the proof tends to establish the same, and, second, whether there is such a variance between the contract alleged, and the proof given, as to require an instructed verdict for the defendant.

The contract of the parties as alleged in the fourth count is of a very vague character, the allegations being that the plaintiff was to "visit various places, to confer with various persons, and do other preliminary work in connection with the purchase" of the Gray property.

There is nowhere alleged in terms...