Carlucci v. Duck's Real Estate, Inc., 771519
| Decision Date | 30 August 1979 |
| Docket Number | No. 771519,771519 |
| Citation | 220 Va. 164,257 S.E.2d 763 |
| Parties | Joseph F. CARLUCCI v. DUCK'S REAL ESTATE, INC. Record |
| Court | Virginia Supreme Court |
H. Lewis Allen, Norfolk (Howard James Marx, Fine, Fine, Legum & Fine, Norfolk, on briefs), for appellant.
Frank E. Butler, III, Virginia Beach (Canada, Butler & Butler, Virginia Beach, on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
This case involves a dispute over the manner of payment of a commission which is admittedly owed by a seller of property to a real estate agency. The amount of the commission is not in controversy. Rather, the issue is whether the entire commission is due upon the sale's consummation, or whether the commission is to be paid as a percentage of the installments when paid to the seller.
Dr. Joseph F. Carlucci, being desirous of selling his Far East Restaurant in Virginia Beach and his lease of the building in which the business was conducted, listed the property with Ricardo, Inc., a local real estate agency. Henry Richardson, an employee of Duck's Real Estate, Inc., another local agency, secured the permission of Ricardo, Inc., to show the restaurant to two prospective buyers, John T. Ricci and Anthony J. Napoleon. The latter two men were interested in the property, and they, together with Richardson, submitted a purchase contract to Dr. Carlucci on or about June 22, 1976, which the owner did not accept.
Thereafter, following a conversation with Dr. Carlucci, Ricci contacted Richardson, indicated his continued interest in the Far East Restaurant, and was again shown the property. A contract, dated July 13, 1976, for the sale of the restaurant and the lease, was prepared by Ricci's attorney and was duly executed by Dr. Carlucci and Ricci. This contract originally provided that "the Seller agrees to pay to Realtor for services rendered a cash fee of 10% Of the purchase price". Dr. Carlucci amended this provision to read that "seller will be solely responsible for any realtor commission incident to the procurement of this contract and will indemnify buyer against any loss for commission claimed or required by any realtor". At the closing of the transaction Richardson requested the sum of $5,417.50 to be paid to Duck's Real Estate, Inc., for its one-half of the commission incident to the sale. Dr. Carlucci tendered to Richardson a check for $250 which was accepted with the written stipulation, prepared by Carlucci's attorney, that Richardson was accepting the sum "without prejudice of any of my rights to balance of commission or the enforcement of my right to the payment of same now or hereafter in connection with the sale of Far East Restaurant".
Subsequently, Duck's Real Estate, Inc., brought action against Joseph F. Carlucci for its commission and recovered a judgment for $5,000, with interest and costs. Following the issuance of an execution and a garnishment, Carlucci satisfied the judgment and perfected his appeal. The position of the plaintiff is that the case was correctly decided in the court below and further that defendant, by satisfying the judgment, waived his right to appeal.
We find no merit in plaintiff's claim of mootness. The general rule is that the payment of a...
To continue reading
Request your trial
-
Peoples Trust & Sav. Bank v. Sec. Sav. Bank
...to levy execution unless the judgment was paid amounted to coercion as to render payment involuntary); Carlucci v. Duck's Real Estate, Inc., 220 Va. 164, 257 S.E.2d 763, 765 (1979) (payment following issuance of execution on judgment and filing of garnishment was involuntary). C. Federal Ca......
-
Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exch.
...Citizens Bank & Tr. Co. v. Crewe Factory Sales Corp. , 254 Va. 355, 355, 492 S.E.2d 826 (1997) ; see also Carlucci v. Duck’s Real Estate, Inc. , 220 Va. 164, 166, 257 S.E.2d 763 (1979). Why? Because a judgment issued by a court of competent jurisdiction — whether the lowest court or the hig......
-
In re General Office Furniture Wholesalers, Inc.
...modification requires the assent of all parties to the contract and may not be unilateral. See Carlucci v. Duck's Real Estate, Inc., 220 Va. 164, 167, 257 S.E.2d 763 (1979) (per curiam); 4B M.J. Contracts, § 54, at 82-83 (Repl. vol. 1974); 17 Am.Jur.2d, Contracts, § 465 (1964). The party as......
-
Sheehy v. Williams
...Citizens Bank & Tr. Co. v. Crewe Factory Sales Corp. , 254 Va. 355, 355, 492 S.E.2d 826 (1997) (citing Carlucci v. Duck's Real Est., Inc. , 220 Va. 164, 166, 257 S.E.2d 763 (1979) ). The antonym of voluntary — involuntary — does not mean inconvenient. If "the law would not compel him to mak......