Emerson C. Custis & Co. v. Tradesmens National Bank & Trust Co.

• Decision Date: 15 July 1944
• Docket Number: 994
• Citation: 155 Pa.Super. 282,38 A.2d 409
• Parties: Emerson C. Custis & Company, Appellant, v. Tradesmans National Bank & Trust Company et al
• Court: Pennsylvania Superior Court

38 A.2d 409

155 Pa.Super. 282

Emerson C. Custis & Company, Appellant, v. Tradesmans National Bank & Trust Company et al

No. 994

Superior Court of Pennsylvania

July 15, 1944

Argued March 13, 1944.

Appeal, No. 224, Oct. T., 1943, from judgment of M. C Philadelphia Co., Feb. T., 1936, No. 456, in case of Emerson C. Custis & Company v. Tradesmans National Bank & Trust Company et al.

Assumpsit. Before Jones, J., without a jury.

Finding and judgment for defendant. Plaintiff appealed.

William Langton Rubin, with him Leo Belmont, for appellant.

Paul Maloney, with him Evans, Bayard & Frick, for appellee.

Keller P. J., Baldrige, Rhodes, Hirt, Reno and James, JJ. (Kenworthey, J., absent).

OPINION

RHODES, J.

This action in assumpsit was tried before a judge of the municipal court without a jury. See section 12 of the Act of July 12, 1913, P. L. 711, as amended by the Act of June 20, 1919, P. L. 515, § 1, 17 PS § 695. The trial judge made a general finding for defendant. The court in banc refused plaintiff's motions for judgment n.o.v. and for a new trial. Plaintiff has appealed from the judgment entered on the finding.

Appellant brought this action against defendant to recover the sum of $ 1,675 upon a quantum meruit for compensation for services alleged to have been rendered in the sale of premises situate at No. 210 Chestnut Street, Philadelphia, Pa. Appellant is engaged in the real estate brokerage business.

Defendant's position was that it never employed appellant, and that it only offered to pay commissions to any broker for a completed sale of the property at $ 40,000.

Appellant was interested in representing the owners of the properties in the area extending from Second Street to American Street, and from Chestnut Street to Sansom Street, in the City of Philadelphia, for sale of these properties to the United States Government for the site of a custom house and appraisement stores. Appellant solicited defendant in order to secure representation of the property at No. 210 Chestnut Street. At the trial there was evidence that appellant was never engaged to represent defendant, but that defendant had authorized a price of $ 40,000 for the property in question, and if the same was sold for that price it would pay appellant, or any other broker who consummated the sale, 5 per cent commission. There was no written contract.

The government selected the Second and Chestnut Street area for a custom house and stores. Appellant offered the property, No. 210 Chestnut Street, for $ 40,000. As the price was too high, the government subsequently instituted condemnation proceedings. Thereafter defendant, without notice to appellant, agreed to a valuation of the said premises in the amount of $ 33,500. Defendant's attorney appeared and filed a stipulation for a consent verdict, and then presented a petition for an order upon the clerk of the United States District Court, with whom the money had been deposited by the government, to pay the same to defendant. Appellant did not participate in any way in these proceedings.

It suffices to say that there is ample evidence in the record to support the finding of the trial judge which has the force and effect of a jury verdict. See Jann v. Linton's Lunch, 150 Pa.Super. 653, 656, 29 A.2d 219; Deacon v. Hendricks, 66 Pa.Super. 36; Philadelphia & Gulf Steamship Co. v. Clark, 59 Pa.Super. 415.

In his opinion the trial judge, in reference to his finding, said "The preponderance of the credible evidence confirms the answers to the plaintiff's [oral] requests and the findings of the trial judge. It establishes the facts that the defendant did not employ the plaintiff to represent it in the sale or transfer of the premises in question, that Edward Murphy did not agree as the agent of the defendant or in any...