Debelius Realty Co. v. Chassagne

• Decision Date: 14 December 1970
• Docket Number: No. 133,133
• Citation: 271 A.2d 527,260 Md. 109
• Parties: DEBELIUS REALTY COMPANY et al. v. Leo J. CHASSAGNE et ux.
• Court: Maryland Court of Appeals

Page 109

260 Md. 109

271 A.2d 527

DEBELIUS REALTY COMPANY et al. v. Leo J. CHASSAGNE et ux.

No. 133.

Court of Appeals of Maryland.

Dec. 14, 1970.

Edward B. Rybczynski, Baltimore, for appellants.

L. Robert Evans, Towson (Leroy E. Gerding, Jr., Baltimore, on the brief), for appellees.

Argued before HAMMOND, C. J., and BARNES, FINAN, SINGLEY and SMITH, JJ.

HAMMOND, Chief Judge.

At issue is the right of a seller of land to recover a part of a payment of a real estate commission made to the selling broker. The drama began in 1962 when Debelius Realty Company (Francis C. Debelius) sent a salesman, Feehely, to urge Leo J. Chassagne who owned unimproved acreage fronting on what is now Merritt Boulevard (part on one side, part on the other) to sign an exclusive listing agreement calling for a commission of 10% of the sales price. Chassagne refused to sign, saying, he testified, 'I don't make no agreements or sign up with nobody, understand?' Debelius testified Chassagne said 'he wouldn't sign anything unless we brought a deposit and a contract.' Feehely and Debelius both testified that later there was an oral agreement that the commission would be 10%. Francis Debelius himself later prepared three separate contracts of sale on standard forms incorporating offers which Chassagne was tendered but would not accept. Each provided that the sellers agreed to pay to Debelius a commission 'in accordance with the Standard Schedule of Commissions of the Real Estate Board of Greater Baltimore.'

Meanwhile, Chassagne sold his land on one side of the road to a buyer not procured by Debelius. The commission on that sale was 10% on the first $5,000 and 6% on the balance of the purchase price. Thereafter Debelius procured one Chilis, who offered $90,000 for the remaining land. Chassagne testified that, when the offer was presented to him, he told Debelius, Feehely and Chilis: 'These commissions will be the same thing on this side of the road as it is on (the other) side.' Judge Turnbull asked: 'Did you tell them the rate at which the commissions were computed?' and the answer was: 'I believe for the first ten thousand dollars it was ten per cent-or was it? Yeah, ten per cent and six per cent for the rest * * *. (H)ere's what I do know, that I told them the same commissions we paid over there we are going to pay on this side.' Judge Turnbull asked: 'You are sure of that?' and Chassagne responded: 'I'm sure of that.'

Chilis' lawyer drew a contract satisfactory to Debelius and Feehely, containing the same provision for a commission that Debelius had provided in his three drafts of contracts-the standard Real Estate Board commission.

When settlement time came, Chassagne's lawyer had died and he was accompanied by that lawyer's young lawyer son. Debelius was given a check by the settlement officer for a $9,000 commission-10% of the $90,000 sales price. Chassagne testified that he said to Debelius:

"You fouled up there, didn't you, boy?' I said, 'You got to overcharge me,' or something like that. And he throwed his hands up in the air, he said it was open ground, or something.'

Debelius testified that the bill for the commission read: 'Agreed upon commission nine thousand dolloars'; that he presented the bill to the young lawyer who told Chassagne that it was the correct commission. Within a day or two the young lawyer called Debelius to say that there had been an overcharge of the commission which should be refunded. Debelius refused to refund and suit was filed. It was stipulated that the Real Estate Board Schedule of Commissions included the following:

'(b) Unimproved Property: Including lands to which improvements add no market value, 10% on the first $5,000 and 6% on the balance, except as provided in paragraphs (e) (farms) and (h) (subdivisions) of this section,' and

'(e) Farms, residential waterfronts and country estates: 6%; higher rates not exceeding 10% are approved and recommended, when specified in the original listing or employment contract.'

When Debelius was asked why he felt he was entitled to a 10% commission, he did not say that it was by virtue of the oral agreement to pay 10% he claimed Chassagne made, but rather said it was because the land was farmland and because:

'It was an unusual sale, in respect that one day we had two lots for sale, we never had an exclusive listing, the property in the past had failed percolation tests, that zoning would have to be obtained, and we could be working for a year, a year and a half, and another fellow get there, another broker get there ten minutes ahead of us, and we would not have had a sale, and all our work would have been in vain.'

Judge Turnbull found as a fact that there was not an employment of Debelius by Chassagne until the final contract of sale between Chassagne and Chilis was signed, calling for a commission under the Real Estate Board Schedule. He also found that, since there was no agreement to pay more, the commission would have been 6% of the price or $5,400 if the property had been farmland. The land had not been farmed since 1940 and said Judge Turnbull:

'I find as a fact that this was not a farm, had not been used as a farm for many years, and was in fact at the time of the signing of the contract potential commercial development property. My finding in that respect is supported by the contract itself, Plaintiffs' Exhibit No. 1, which provides, beginning on Page 1, 'Contingent and conditioned upon the zoning of the entire property hereby sold for commercial use; said zoning to be in full force and effect at the time of settlement.' And then, further provides, and I paraphrase, that if the zoning is not accomplished within six months the buyers shall have the right to cancel, and the deposit should be refunded.

'So that to me it is perfectly obvious that what was contemplated by the seller, the purchaser and the agents was the sale not of a farm, but the sale of commercial property. At the time of the consummation of the contract the property, according to the evidence, had finally been zoned for commercial uses, and the property transferred was commercial property.'

The commission payable under the standard schedule for unimproved commercial land was $5,600. The judgment appealed from...