Cowal v. Marletta
| Decision Date | 28 March 1958 |
| Docket Number | No. 184,184 |
| Citation | 216 Md. 222,139 A.2d 712 |
| Parties | Edward S. COWAL, t/a Gibraltar Realty Co. v. Angelo MARLETTA, t/a Marletta's Italian Restaurant. |
| Court | Maryland Court of Appeals |
Lewis H. Weiss, College Park, for appellant.
No appearance for appellee.
Before BRUNE, C. J., HENDERSON, PRESCOTT and HORNEY, JJ., and J. DE WEESE CARTER, Special Judge.
The Circuit Court for Prince George's County set aside the verdict of a jury in favor of the appellant (broker) for $670 commissions and granted the motion of the appellee (owner) for a judgment n. o. v. under Maryland Rule 563, subd. b, par. 1. While the record is silent on the subject, the apparent basis for the trial court's action was that there was no legally sufficient evidence from which the jury could have found that the broker's efforts were the procuring cause of the sale. This appeal questions the correctness of that ruling and requires a review of the evidence.
The following facts are undisputed. In August, 1953, the owner advertised for sale, in a Washington newspaper, his delicatessen business located on Marlboro Pike, Prince George's County. In response to this advertisement and immediately thereafter, Mr. Anderson, one of the purchasers in this case, investigated the business but did not buy because the price was too high. On February 13, 1954, the broker secured from the owner written authorization to sell, which provided that the sale price should be $16,000 plus the inventory, and the commission to be 10 per cent, if sold through the efforts of the broker. The broker then advertised the business for sale in a local newspaper by a brief description, setting forth the nature of the business, the sale price, the weekly sales and that it was ideal for two persons. In response to this advertisement he received telephone calls from Mr. Lucien Hale of Virginia on March 15th and 16th. After receiving these calls he wrote the name of Mr. Hale, his address and telephone number, and the name of Mr. Anderson on his office card as prospective purchasers. The last of March, 1954, Anderson investigated the business again and went to see the owner. At this time the owner reduced the sale price to $15,000, and included the stock, with a guarantee it was worth $3,000. Anderson accepted this offer. Thereafter, about the first of April, the broker met the owner and Anderson in the store, and the owner informed him he had sold the business to Anderson. The broker then exhibited his office card with the name, address and telephone number of Hale and the name of Anderson listed as his clients and claimed commissions on the sale. Anderson denied he had ever known the broker in relation to the sale and the owner denied his claim for commissions. The owner and Anderson then left the store stating they were going to a lawyer's office to have legal papers prepared concerning the sale, and were joined outside by Mr. Hale. Prior to the sale, Anderson and Hale had jointly inspected about 10 delicatessens, with the view of purchasing such a store. About a week subsequent to the agreement of sale, Hale inspected the business with Anderson and later joined him as co-purchaser for the price of $13,400.
The broker testified that during the telephone calls from Mr. Hale on March 15th and 16th, Hale informed him he was calling in response to his advertisement for a friend whose name was Anderson; that because Hale appeared to be acting in good faith he gave him the name of the owner and the location of the business; that the present and potential sales of the business were then discussed; that subsequent to Hale's inquiry he telephoned him several times suggesting they inspect the business and that Hale consistently informed him his friend was not yet interested, had not had time to investigate, and as soon as he became interested Hale would contact him. He further testified that during the conversation at the store between Anderson and himself, Anderson stated he had received information the store was for sale from a Mr. Cheshire; that he then telephoned Cheshire who denied giving Anderson any information about the business being for sale.
Mr. Hale was called as a witness by the broker and stated that the extent of the telephone conversations between the broker and himself on March 15th and 16th was an inquiry from him to determine if the business was located in Virginia and when he discovered it was in Maryland, he informed the broker he was not interested; that he did not learn the address of the business or the name of the owner from the broker and that Anderson's name was not mentioned. He further stated that although he wanted a business in Virginia, Anderson prevailed upon him to inspect this business after Anderson had purchased it, and that he ultimately joined with him as co-purchaser in the final contract.
Mr. Anderson testified that he was caused to inspect the business the last of March, 1954, and negotiate the sale solely because of the newspaper advertisement of the owner in August, 1953; that he negotiated the agreement of sale on his own behalf; that Hale did not inform him the business was for sale, nor have any part in the matter until a week after he had entered into the agreement of sale with the owner.
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... ... 1271] of the contract if his efforts were the proximate cause of interesting the purchaser, and of the purchaser's ultimate agreement to buy, Cowal v. Marletta, 216 Md. 222, 228 [139 A.2d 712] (1958) ... Bufalo was an employee of Korzendorfer Realty when Mr. Holland telephoned ... ...
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