Dowing v. Marks

• Decision Date: 22 April 1935
• Docket Number: 25
• Citation: 178 A. 676,318 Pa. 289
• Parties: Downing v. Marks, Appellant
• Court: Pennsylvania Supreme Court

178 A. 676

318 Pa. 289

Downing v. Marks, Appellant

No. 25

Supreme Court of Pennsylvania

April 22, 1935

Argued March 25, 1935

Appeal, No. 25, March T., 1935, by defendant, from judgment of C.P. Erie Co., Sept. T., 1929, No. 475, in case of Frederick B. Downing v. Marcus M. Marks. Judgment affirmed.

Assumpsit. Before NILES, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff. Defendant appealed.

Error assigned, among others, was refusal of judgment n.o.v.

The judgment of the court below is affirmed.

W. Pitt Gifford, of Gunnison, Fish, Gifford & Chapin, with him Chas P. Hewes, for appellant.

Albert L. Thomas, with him S. Y. Rossiter, for appellee.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE SIMPSON:

Appellant (who was defendant below) and his two sisters owned a large business property in the City of Erie, in which defendant carried on business. Learning that the property would probably be leased, and believing that he knew a customer for it, plaintiff called upon defendant and was authorized to lease it upon specified terms. His customer was not willing to pay the price demanded by the owners, and he thereupon reported that fact to defendant. Defendant was desirous of knowing who was the prospective customer and agreed with plaintiff, so the latter averred and testified, that if "plaintiff would reveal the name of the prospective tenant . . . he, the defendant, would pay plaintiff a reasonable and substantial commission, provided defendant leased the premises to such prospective tenant." Plaintiff thereupon disclosed the name of the prospective customer, and he was subsequently given a lease by appellant and his sisters.

When payment was demanded in accordance with the terms of the alleged agreement, defendant denied liability and plaintiff thereupon began the present suit. He recovered a verdict and judgment, from the latter of which the present appeal was taken.

It would unduly prolong this opinion to consider each of the twenty assignments of error separately, and we shall therefore, review appellant's complaints along the line of the statement of questions involved, six in number, which will ordinarily be held to limit the scope of an appeal: Whalen v. Smith Fireproof Construction Co., 296 Pa. 10; Keller v. N.J. Fidelity & Plate Glass Ins. Co., 306 Pa. 124.

The first of the questions is: "Can the president of a corporation authorized to do a real estate business, which has failed to take out a broker's license, maintain an action in his own name to recover compensation for services in procuring a lease on a quantum meruit where he also has failed to take out a license as a broker?" The jury has found as a fact that plaintiff, in the contract on which suit was brought, was acting for himself personally. This being so, it is immaterial whether or not he was "president of a corporation authorized to do a real estate business," or any other business whatever.

The second question involved is: "Can one not licensed as a broker, recover for services in procuring a lease as a casual transaction, where no definite amount has been agreed upon?" This question implies that, but for the failure to state the exact amount in the contract, defendant would be liable upon it if made as averred, and this is admitted in appellant's brief. Where the party did not hold himself out as a real estate broker, it has long been the law of this State that he may recover under his contract though he was not licensed as such a broker. No case imposes as a further limitation that the contract must be for a specific sum, and no reason exists, indeed none is alleged by appellant, why such further limitation should be imposed. In Woods v. Heron, 229 Pa. 625, under like circumstances, plaintiff recovered as upon a quantum meruit. True, in that case the present point was not raised, but this rather implies that counsel therein was of opinion that there was nothing in it, as indeed there was not. Unless there is some policy of the law on the question, though none is alleged and we do not know of any, there would seem to be no reason why a plaintiff in this class of cases cannot recover as upon a quantum meruit, as in all other cases where a contract has been made, but the exact amount of remuneration has not been specified: id certum est quod certum reddi potest.

The reason why a real estate broker cannot recover a commission in such matters, unless he has been licensed to carry on that business, is because to allow it would be to permit a recovery for doing that which is forbidden by law; but in casual transactions this has no application to a case where the compensation is not specified, any more than to one where it is. It must be said here, as was said in Chadwick v. Collins, 26 Pa. 138, 139: "Any person may lawfully employ one who is not a real estate broker to buy or sell real estate, and where such employment takes place, and labor is done under the employment, it must be paid for; at all events, the law will not lend its aid to the employer to defraud the employee out of his just reward."

The third question said to be involved is: "Where other parties than the plaintiff were instrumental in procuring the lease, is evidence of a commission paid to them, competent as bearing upon reasonable compensation to the plaintiff for the services he performed?" This contention is without force. Under the...